M.J. v. S.J.

J-A23031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.J., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
S.J., :
:
Appellant : No. 117 WDA 2014

Appeal from the Order entered on December 19, 2013
in the Court of Common Pleas of Allegheny County,
Family Court Division, No. FD 07-009307-004

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2014

pro se, from the Order denying his Petition for

Contempt of Custody Order. We affirm and remand for the calculation and

award of reasonable counsel fees.

The trial court set forth the relevant factual and procedural history as

follows:

Father and M.J
and had two children Sa.J. (DOB 8/11/94) and Su.J. (DOB
10/9/00). Mother filed for divorce in December 2007, with
claims for custody, support, and equitable distribution. Since
then, the docket in this matter has been extremely active [(this
appeal is the fifteenth of its kind)]. In recent years, the
litigation has centered most heavily around Su.J.; Sa.J. has been
emancipated for some time. The primary issues in this latest
appeal concern legal custody and contempt of custody orders.

An appropriate timeline begins on November 27, 2012[,] when
Hearing Officer Laura Valles held a hearing on the issue of
custody modification. The Hearing Officer ordered, among other
things, that Su.J. see a therapist to address mental health
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Father must be required to give the requisite medical consent to
the therapist so that Su.J. can begin treatment. But[,] before
[the trial c]ourt could rule on that exception, Father gave his
consent[,] and [] Mother withdrew her contention. Following the
exceptions argument, however, Father revoked his consent and
Su.J. was forced to cease her treatment. When Mother brought
the issue before the [trial c]ourt, the [trial c]ourt sua sponte
ordered a hearing on legal custody. Father appealed [the trial

See M.J. v. S.J., 93 A.3d 507
(Pa. Super. 2013) (unpublished memorandum), appeal denied,
89 A.3d 1285 (Pa. 2014).]

In the interim, Father and Mother each appealed other unrelated
matters. [See M.J. v. S.J., 747 & 925 WDA 2013 (Pa. Super.
filed July 16, 2014).] In August 2013, Mother retained counsel,
and soon thereafter asked the [trial c]ourt to cancel the legal
custody hearing after coming to an apparent resolution with
Father. The armistice was short-lived, however, and Mother
petitioned the [trial c]ourt to schedule a hearing on legal custody
after all. The legal custody hearing was scheduled for December
5, 2013. Meanwhile, Father also brought a contempt petition,
which th[e trial c]ourt consolidated with the December legal
custody trial. At the December 5 consolidated trial, [the trial
c]ourt found that Mother was not in contempt. It also
discontinued the legal custody portion of the trial [and

Trial Court Opinion, 2/19/14, at 1-2 (citations and footnote omitted).1

The trial court entered an Order on December 19, 2013, denying

with a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

The trial court issued an Opinion.

On appeal, Father raises the following questions for our review:

1

Opinion as February 19, 2013.

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1. Did the [trial c]ourt abuse its discretion by ignoring evidence

-service day with [Su.J.], knowing that [] Mother
had previously violated [a] custody order resulting in make up
time[,] per Order of June 12, 2013?

2. Did the [trial c]ourt abuse its discretion by ignoring evidence
-
stody time?

3. Did the [trial c]ourt abuse its discretion by not granting a
hearing on contempt [of the] custody [O]rder with [Hearing
Officer] Laura Valles so it could circumvent and avoid

impartial as reflected by [the] November 27, 2012 hearing
with [Hearing Officer] Laura Valles that resulted in
recommendations unfavorable to Mother, and [Hearing
Officer] provided continuity to how the in-service days got
included in her recommendations and by failing to delineate
reasons for [the] decision on contempt of custody [O]rders on
record or in the [O]rder per 23 Pa.C.S.[A. §] 5323(d)?

4. Did the [trial c]ourt abuse its discretion and err[] by issuing

petition for a hearing on legal custody when [the trial c]ourt
did not have jurisdiction with appeal #723 WDA 2013 pending
in the Superior Court? Court admitted to lack of jurisdiction,
found [Mother] negligent in seeking hearing, asked [Father]
for amount of damage[s] incurred with holding hearing, and
yet failed to award damages to [Father].

5. Did the [trial c]ourt abuse its discretion [by releasing] a
sealed Opinion for a related appeal[,] 747/925 WDA 2013[,]
to Allegheny County Law Library?

Brief for Appellant at 3.

Our scope and standard of review are familiar: In

limited to determining whether the trial court committed a clear
abuse of discretion. This Court must place great reliance on the
sound discretion of the trial judge when reviewing an order of
contempt.

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P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa. Super. 2012) (citation and

quotation marks omitted).

In his first claim, Father contends that the trial court ignored evidence

-service day with Su.J., knowing that

Mother had violated prior custody orders. Brief for Appellant at 5-6. Father

also argues that Mother created conflicts in custody time by scheduling a

vacation with Su.J. during a period when Su.J. was to spend time with

Father for a religious holiday. Id. at 6.

determined that it is without merit. See Trial Court Opinion, 2/19/14, at 6-

10. We adopt the sound reasoning of the trial court for the purpose of this

appeal and affirm on this basis. See id.

In his second claim, Father contends that the trial court abused its

discretion in failing to find Mother in contempt for scheduling extra-curricular

argues that the trial court acted with ill-will toward him in making its finding.

Id.

s second claim and determined that it

is without merit. See Trial Court Opinion, 2/19/14, at 10-12. Further,

Father has not presented any evidence that the trial court acted with any ill-

will toward him in it making its determination. Thus, we affirm as to this

issue on the sound reasoning of the trial court. See id.

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In his third claim, Father contends that the trial court abused its

discretion in not holding a hearing with Hearing Officer Laura Valles on the

contempt Petition. Brief for Appellant at 6-7. Father argues that the trial

court only schedules hearings with the Hearing Officer when it favors

Mother, and ignores any recommendations made by the hearing officer that

favor Father. Id. at 7.2

claim and

determined that it is without merit. See Trial Court Opinion, 2/19/14, at 12-

13. We adopt the sound reasoning of the trial court for the purpose of this

appeal and affirm on this basis. See id.

In his fourth claim, Father contends that the trial court abused its

an appeal regarding this issue was pending before this Court at 723 WDA

2013. Brief for Appellant at 7-9. Father argues that he was entitled to

damages ba

court did not have jurisdiction due to the pending appeal. Id. at 8. Father

further argues that Mother admitted that she was in contempt of custody

Orders and that the trial court ignored

recommendations. Id. at 7-

2

pertinent authority. See Pa.R.A.P. 2119(a) (stating that the argument shall

In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012).

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custody hearing on March 13, 2014, was in error as it did not have

jurisdiction over the matter. Id. at 9.

d determined that it

is without merit. See Trial Court Opinion, 2/19/14, at 2-6.3 We adopt the

sound reasoning of the trial court for the purpose of this appeal and affirm

on this basis. See id. With regard to any claims not addressed by the trial

court, we conclude that the evidence does not support his claims and,

therefore, Father is not entitled to relief.

In his fifth claim, Father contends that the trial court abused its

discretion by releasing to the public its opinion for 747 & 925 WDA 2013 in

violation of an Order to seal the record. Brief for Appellant at 9.4

without merit. See Trial Court Opinion, 2/19/14, at 13-14. We adopt the

sound reasoning of the trial court for the purpose of this appeal and affirm

on this basis. See id.

in this matter. Indeed, Father has filed fifteen appeals, and has repeatedly

litigated various orders for de minimis matters. See id. at 11-12; see also

3
We also note that t
filed at 723 WDA 2013. See M.J., 93 A.3d 507 (unpublished memorandum
at 10-12).
4
Father again failed to include a single citation to pertinent authority in his
argument. See Pa.R.A.P. 2119(a). N
argument.

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J-A23031-14

M.J. v. S.J., 40 A.3d 187 (Pa. Super. 2011) (unpublished memorandum at

2-

his petitions for contempt and sanctions against Mother). Father has

exhibited a sustained pattern of vexatious appellate litigation against Mother

and we cannot ignore his continual abuse of the court system to harass her.

See, e.g., M.J. v. S.J., 29 A.3d 832 (Pa. Super. 2011) (unpublished

memorandum at 1-13) (wherein this

appeal and imposed against Father the counsel fees incurred by Mother,

finding that Father had engaged, throughout the litigation, in obdurate,

dilatory, and vexatious conduct); M.J. v. S.J., 29 A.3d 824 (Pa. Super.

2011) (unpublished memorandum at 1-12) (wherein this Court disposed of

conduct was obdurate, dilatory, and vexatious).

Pennsylvania Rule of Appellate Procedure 2744 allows this Court to sua

sponte impose an award of reasonable counsel fees against a party if we

participant against whom costs are to be imposed is dilatory, obdurate or
5
see also Feingold v. Hendrzak, 15 A.3d

5

power under any statute or rule to award counsel fees for proceedings below
and can only award fees for vexatious or obdurate conduct through a
Twp. of South Strabane v. Piecknick, 686 A.2d 1297,
1300 n.4 (Pa. 1996).

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937, 943 (Pa. Super. 2011) (stating that this Court may sua sponte impose

an award of counsel fees under Appellate Rule 2744). Upon awarding

reasonable counsel fees, we may remand the case to the trial court so that it

can calculate the precise amount. Pa.R.A.P. 2744.

Because Father has filed this frivolous Petition for Contempt and the

ate to award

Feingold

for calculation of reasonable counsel fees for this appeal.

Order affirmed. Case remanded for calculation and imposition of

reasonable counsel fees to be awarded to Mother consistent with this

Memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2014

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