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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
W. W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
M.S. – W.
Appellee No. 1044 EDA 2014
Appeal from the Order Entered March 5, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 1310V7081
BEFORE: DONOHUE, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 13, 2014
Appellant, W.W.,1 appeals pro se from the trial court’s March 5, 2014
order denying Appellant’s petition for contempt. Appellant alleged Appellee,
M.S.-W., repeatedly violated the trial court’s final order entered pursuant to
the Protection From Abuse Act, 23 Pa.C.S.A. § 6101, et seq. We affirm.
Appellant commenced this litigation with a Protection From Abuse
(“PFA”) petition he filed against Appellee on October 9, 2013. Appellee filed
a PFA petition against Appellant on October 17, 2013. On November 5,
2013, the parties appeared at a hearing before Judge Ida K. Chen and
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1
In a prior appeal, at number 987 EDA 2013, this Court redacted the
parties’ names. See infra at footnote four. For consistency, we have done
the same here.
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consented to entry of a mutual stay-away order to be effective for one year.
Also on November 5, 2013, the trial court devised a temporary custody
order to govern the parties in their ongoing dispute over the custody of their
minor child.2
On January 23, 2014, Appellant filed a petition to hold Appellee in
contempt of the PFA order, alleging Appellee violated a no contact provision
in the order. Appellant filed a second petition to hold Appellee in contempt
of the PFA order on January 31, 2014. On March 5, 2014, Judge Maria
McLaughlin conducted a hearing, at the conclusion of which she declined to
hold Appellee in contempt but ordered make-up custody time for Appellant.
N.T. Hearing, 3/5/14, at 29-31. Appellant filed this timely pro se appeal on
April 1, 2014. He raises two issues for our review:
Did the trial court erred [sic] when during Appellant’s
Petition for Contempt [. . .] and without a petition for
modification of custody filed or pending, unilaterally and without
a petition for modification of custody filed or pending,
unilaterally and illegally modified the custody provisions
contained in the original mutual Protection From Abuse Orders
agreed to by the parties and entered as an Order of Court?
Did the trial court erred [sic] when it failed to find Appellee
in contempt for violating the mutual Protection From Abuse
Order agreed to by the parties and entered as an Order of
Court?
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2
See 23 Pa.C.S.A. § 6108(a)(4) (permitting the trial court to create
temporary custody arrangement as part of a PFA order).
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Appellant’s pro se Brief at 8.3
Appellant’s first issue is not properly before this court. “Generally, a
custody order will be considered final and appealable only if it is both: (1)
entered after the court has completed its hearings on the merits; and (2)
intended by the court to constitute a complete resolution of the custody
claims pending between the parties.” Wagner v. Wagner, 887 A.2d 282,
285 (Pa. Super. 2005). The parties’ custody battle is ongoing, and the trial
court planned additional hearings shortly after the March 5 PFA contempt
hearing. The record reflects the trial court conducted an expedited hearing
on the custody dispute on March 12, 2014, only one week after the order
presently on appeal. At the conclusion of that hearing, the trial court issued
an interim custody order pending a full hearing to be held July 30, 2014.4
Since the trial court has not completed its hearings on the pending custody
dispute, and since the order on appeal plainly does not constitute a complete
resolution of the parties’ custody claims, we decline to address Appellant’s
first assertion of error.
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3
Appellee has not filed a brief with this Court.
4
By order of May 9, 2014, this Court quashed Appellant’s appeal from the
trial court’s March 12, 2014 order because that order was not final and
appealable. W.W. v. M.S.-W., 987 EDA 2013 (per curiam order, May 9,
2014). We note that the appendix to Appellant’s pro se brief erroneously
includes the trial court opinion pertaining to the March 12, 2014 order.
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In his second assertion of error, Appellant claims the trial court erred
5
in not finding Appellee in contempt of the March 5, 2014 PFA order.
Section 6114.1 of the PFA Act permits a plaintiff to file a petition for civil
contempt with the court that issued the PFA order. 23 Pa.C.S.A. § 6114.1.
Appellant has done so here.
In proceedings for civil contempt of court, the general rule
is that the burden of proof rests with the complaining party to
demonstrate, by preponderance of the evidence, that the
defendant is in noncompliance with a court order. However, a
mere showing of noncompliance with a court order, or even
misconduct, is never sufficient alone to prove civil contempt.
To be punished for contempt, a party must not only have
violated a court order, but that order must have been "definite,
clear, and specific-leaving no doubt or uncertainty in the mind of
the contemnor of the prohibited conduct. Because the order
forming the basis for civil contempt must be strictly construed,
any ambiguities or omissions in the order must be construed in
favor of the defendant. In such cases, a contradictory order or
an order whose specific terms have not been violated will not
serve as the basis for a finding of contempt. To sustain a finding
of civil contempt, the complainant must prove certain distinct
elements: (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. A person may
not be held in contempt of court for failing to obey an order that
is too vague or that cannot be enforced.
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5
An order declining to hold a party in contempt is appealable where the
contempt relates to a prior final order. Schultz v. Schultz, 70 A.3d 826,
828 (Pa. Super. 2013). Since the alleged contempt relates to the final PFA
order entered March 5, 2014, we will address the merits of Appellant’s
argument.
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In re Cullen, 849 A.2d 1207, 1210-11 (Pa. Super. 2004). We review the
trial court’s decision for an abuse of discretion. Id. at 1210.
Appellant claims the trial court erred because Appellee repeatedly
contacted him in violation of the no contact provision in the November 5,
2013 PFA order. Appellee, through counsel conceded at the hearing that she
contacted Appellant regarding custody exchanges of the parties’ minor child.
N.T. Hearing, 3/5/14, at 7. Appellee believed she was free to do so
because, on the written PFA order, the trial court left the “no contact” box
unchecked. Id. at 6. Appellant argues the PFA order was clear, definite,
and specific in ordering no contact despite the unchecked box, because
language elsewhere in the PFA order prohibited contact between the parties.
Appellant also asserts the box was erroneously left unchecked.6
The trial court concluded reasonable minds could differ as to whether
the PFA order prohibited contact, and therefore declined to hold Appellee in
contempt. We agree with the trial court’s assessment. The text next to the
unchecked box reads as follows: “Except as provided in paragraph 5 of this
order, [M.S.-W.] shall not contact [W.W.] by telephone or by other means,
including through third persons.” PFA Order, November 5, 2013. Paragraph
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6
Though the transcript is less than clear on the subject, the parties seem to
reference subsequent corrections to the PFA order. N.T. Hearing, 11/5/13,
at 10. They did not, however, have signed copies of it at the hearing. Id.
We have confined our analysis to the order of record that was the basis for
the trial court’s decision to deny Appellant’s contempt petition.
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5 of the order details the parties’ custody arrangement regarding their minor
child.7
Under these circumstances, we believe the trial court acted within its
discretion in determining that Appellee’s conduct did not amount to an
intentional violation of a definite, clear, and specific court order.
Furthermore, it appears Appellee could reasonably believe contact was
permissible regarding custody exchanges even if the disputed box was
checked. We find no error in the trial court’s decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2014
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7
The record reflects that the parties made custody exchanges at a police
station in Ardmore, Pennsylvania. N.T. Hearing, 11/5/13, at 10.
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