J-A29028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.R., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L.T.,
Appellee No. 494 WDA 2015
Appeal from the Order March 19, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 07-003697-004
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 22, 2016
J.R. (“Father”) appeals the March 19, 2015 order wherein the trial
court denied his exceptions to the report and recommendation filed by
custody hearing officer, Laura A. Valles, Esquire, disposing of his petition for
contempt against L.T. (“Mother”). We affirm.
J.R., Jr. was born out of wedlock during April 2007 of Mother and
Father’s relationship. Since July 27, 2010, Mother and Father have been
parties to a contentious custody dispute that culminated in the March 24,
2015 custody order that awarded shared legal and physical custody.1 The
instant appeal stems from the recommended contempt order issued by
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1
We disposed of Father’s appeal from the final custody order in a separate
memorandum filed at 495 WDA 2015.
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Hearing Officer Valles while the custody matter was pending. Prior to the
resolution of the custody litigation, Mother and Father utilized a series of
consent orders to establish the parameters of the custody arrangement.
Pursuant to the relevant iteration of the custody agreement, which was
entered on February 5, 2014, the parties shared physical custody of J.R., Jr.
on an alternating weekly basis. In addition to establishing the custodial
periods, Mother and Father agreed to, inter alia, (1) provide access to
academic and medical records; (2) cooperate with their son’s Individual
Educational Plan (“IEP”); (3) provide notice of trips outside of Allegheny
County, Pennsylvania; (4) utilize the co-parenting tool “Our Family Wizard”
for correspondence; (5) make J.R., Jr. available to the non-custodial parent
for daily telephone contact. See Custody Consent Order, 2/5/14, at 1-8.
On October 29, 2014, Father filed a pro se petition for special relief
alleging that Mother was in contempt of the February 2014 consent order for
violating the above-referenced aspects of the accord. In addition to
requesting that the hearing officer order penal sanctions against Mother,
Father sought “all fees associated with the preparation . . . and attendance
at any . . . hearing” associated with his petition. Petition for Special Relief,
10/29/14, at 5 (emphasis in original). During the ensuing hearing, Father
added several additional grounds for contempt of the February 2014 order,
and he asserted that Mother was also in contempt of a different order
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directing her to timely pay his attorney’s fees associated with a prior petition
for relief.
Father testified on his own behalf. He leveled a litany of complaints
that assailed Mother’s alleged failure to provide advance notice of required
non-emergency medical care and to inform him of her decision to relocate
from the Fox Chapel School District. He also challenged Mother’s conduct
during J.R., Jr.’s IEP meetings, her dilatory actions in causing J.R., Jr. to
miss a little league baseball game, and having to reschedule vision and
speech therapy sessions. Father also challenged Mother’s unilateral decision
to enroll their son in the Summer Learning Academy Program and then
failing to transport him directly from that program to Father’s residence.
Additionally, he claimed that Mother was disrespectful, avoided his attempts
to maintain daily telephone contact with J.R., Jr., and failed to utilize Our
Family Wizard. Mother testified and introduced two exhibits that 1) outlined
the notice that she provided Father regarding her move from the Fox Chapel
School District; and 2) revealed the tenor of Father’s exchanges with her on
the Our Family Wizard website.
On November 14, 2014, Hearing Officer Valles issued a recommended
order granting Father’s petition, in part, and denying it in part. The
recommendation acted as a temporary order of court pending the resolution
of any anticipated exceptions or the entry of a final order. Specifically,
Hearing Officer Valles found Mother in technical violation of the order
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directing her to satisfy Father attorney’s fees within a set period, however,
she reasoned that the violation was de minimis because Mother paid the fees
prior to the contempt hearing. She also determined that Mother was in
contempt of the February 5, 2005 accord for taking the child to the doctor
without Father’s prior notice, failing to actively utilize Our Family Wizard,
and neglecting to transport J.R., Jr. directly from the summer learning
program to Father’s directly. However, she determined that Mother could
purge her contemptuous conduct by exercising strict compliance with these
aspects of the consent order in the future.
Hearing Officer Valles rejected Father’s assertions that Mother was in
contempt of the February 5, 2014 consent order for, inter alia, failing to
inform Father of her decision to move from the Fox Chapel School District,
causing J.R., Jr. to miss a little league baseball game, opposing Father
during their son’s IEP meetings, enrolling the child in a Summer Learning
Academy Program, rescheduling vision and speech therapy, being
disrespectful, and not maintaining daily telephone contact. Additionally, the
hearing officer denied Father’s request for the costs and fees associated with
litigating the instant contempt petition.
Father filed timely exceptions to Hearing Officer Valles’s proposed
order. On March 19, 2015, the trial court issued the above-referenced order
dismissing Father’s exceptions and entering the recommendation as a final
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trial court order. This timely appeal followed.2 In compliance with the trial
court order, Father filed his concise statement of errors complained of on
appeal pursuant to Rule 1925(b) wherein he asserted three contentions that
the trial court erred in 1) dismissing his exceptions, generally; 2) dismissing
the exceptions “without providing an explanation of [its] decision[;]” and 3)
failing to review the entire transcript of the contempt hearing after indicating
that “[it] would read the entire transcript . . . [,] a 227[-]page document, . .
. yet signed the Order the same day.” Father’s Rule 1925(b) Statement,
4/13/15, at 3.
On appeal, he presents the following questions:
1. Did the Honorable Court err in ignoring the transcripts of
the November 5, 2014 [h]earing addressed in the Exception?
2. Did the Honorable Court err in dismissing [Father’s]
[e]xceptions to the [h]earing [o]fficers [r]ecommendations
pursuant to 23 Pa.C.S. § 5323.g?
3. Did the Honorable Court err in dismissing [Father’s]
[e]xceptions without explanation?
Father’s brief at 2.
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2
The trial court order was not included in certified record on appeal. On
December 18, 2015, we entered a per curiam order directing the trial court
to enter the order on the record and transmit it to this Court as a
supplement to the certified record pursuant to Pa.R.A.P. 1926. The trial
court complied on December 23, 2015. Since this appeal was filed “after the
announcement of a determination but before the entry of an appealable
order,” it is “treated as filed after such entry and on the day thereof.”
Pa.R.A.P. 905(a)(5).
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We have explained the relevant standard of review of a trial court’s
resolution of a petition for contempt as follows:
Our scope and standard of review are familiar: “In reviewing a
trial court's finding on a contempt petition, we are 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.” Flannery v. Iberti, 763 A.2d 927, 929 (Pa.Super.
2000) (citations omitted).7
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7
To sustain a finding of civil contempt, the 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 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. Stahl v.
Redcay, 897 A.2d 478, 489 (Pa.Super. 2006). . . .
_____________________________________________________________________________
P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa.Super. 2012).
Herein, Father contends that Mother was in contempt of the February
5, 2014 custody accord and requests that the court sanction Mother and
reimburse him for his costs to litigate this petition. As his three arguments
are interrelated, we address them jointly, and for the reasons that follow, we
deny relief.
Primarily, Father contends that the trial court’s admonishment of
Mother for her contumacious conduct was too lenient. Stated simply, Father
argues that the trial court’s decision to permit Mother to purge her contempt
by exercising strict compliance with the custody arrangement in the future
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was utterly ineffectual, i.e., a tacit approval of her behavior. Relying upon
23 Pa.C.S. § 5323(g),3 Father argues that it would have been more
appropriate to impose a penal sanction and allow Mother to purge that
penalty by demonstrating her compliance with the custody order. He
asserted, “When the Trail [sic] Court made the decision to not sanction
[Mother] and [instead, chose to] dismiss [F]ather’s [e]xceptions[,] not only
did it harm the [c]ustodial [r]ights of [Father], italsoharmed [sic] the
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3
The relevant provision states:
(g) Contempt for noncompliance with any custody order.--
(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. § 5323(g).
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interest of the general public, and the integrity and authority of the Court.”
Father’s brief at 6.
In a related contention, Father asserts that the trial court erred in
ignoring Hearing Officer Valles’s “lackadaisical reaction toward [Mother’s]
contempt” and in failing to “provide some explanation of its decision” in the
order dismissing its appeal. Father’s brief at 7. Finally, he implies that the
trial court shirked its judicial obligations by dismissing Father’s exceptions on
the same afternoon that it advised him that it would review the entire
transcript of the contempt hearing prior to rendering its decision, the
inference being that the court lacked sufficient time to complete the feigned
review. All of the foregoing arguments are meritless.
In rejecting Father’s assertions, the trial court found that punitive
sanctions were not warranted in this case due to the relatively minor
transgressions. We agree. First, as it relates to Mother’s delay in paying
counsel fees, we observe that Mother satisfied the debt prior to the
contempt hearing and Father did not proffer any reason for the proposed
sanctions beyond punishing Mother for violating her promise to pay by the
required time. Similarly, the trial court explained that, while Mother was in
contempt for failing to communicate with Father regarding J.R., Jr.’s medical
appointments and neglecting to actively utilize the Our Family Wizard
website, it adopted Hearing Officer Valles’s perspective that the infractions
were de minimis. The trial court added that Mother and Father communicate
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routinely about their son and his schedule, and Father often misused the
lines of communication to harass Mother.
The certified record supports the trial court’s rationale. During the
hearing, Father outlined his intense efforts to contact J.R., Jr. when the child
is in Mother’s custody and Father described a telephone application that
permits him to make recurring calls to Mother’s telephone automatically
whenever he believes that she is avoiding him. N.T., 11/5/14, at, 67-68,
137-138. In addition to the automated telephone calls, Father employs a
campaign of emails, text messages, and posts on the Our Family Wizard
website. Father testified,
I call every day between 7:00 and 8:00. I usually -- she has two
numbers that ring to the same phone. I will call, I will call the
other number, I will call the other number and then I'll call
again. Then I have an app on my phone that will recall for a half
an hour. There is never an answer. When I call between 7:00
and 8:00 or about that time I also send a text message, "I want
my call." I also send an email, "I want my call." I also put it on
OurFamilyWizard, "I want my call." Out of those 40 "I want my
calls" none of them were ever answered nor did I get the call,
ever.
Id. at 67-68. Father admitted calling Mother up to twenty times per day.
Id. at 137.
On other occasions, Father repeatedly sent Mother text messages or
posted inquiries on Our Family Wizard requesting to know J.R., Jr.’s location
or demanding explanations for the child’s tardiness or absence from
appointments, practices, and rehearsals, even though those events occurred
during Mother’s custodial period. Id. at 53. Hence, the certified record
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establishes that Father misused the multiple lines of communication to
harass Mother and pester her about their son’s schedule. Thus, while
Mother was in technical violation of the consent order, her avoidance of
Father was understandable and her contemptuous behavior in failing to
respond promptly to Father was de minimis.
We also rebuff Father’s contentions that the trial court tacitly approved
Mother’s behavior. As it relates to Mother’s failure to immediately return
J.R., Jr. to Father following the child’s participation in the Summer Learning
Academy, the record bears out that Hearing Officer Valles found Mother in
contempt and sternly admonished her for the frolic and detour. After
Mother’s counsel inquired “What is the harm that [J.R., Jr.] went to
McDonald’s [following the program]?” Hearing Officer Valles scolded,
It’s not her time. I don't even want to play that.
....
Because if it happened on your time, I’d be just as strict. If
you want him to go to the summer learning program you pick up
you drop off, there is no lunch, there is no playing basketball,
there's nothing. It’s dad's time.
Id. at 144.
In review of this aspect of Father’s argument, the trial court agreed
that Father’s allegations of contempt against Mother for her diversions
following the summer learning program had merit. However, it also believed
that the hearing officer’s admonishment was appropriate. Specifically, the
court concluded that Hearing Officer Valles considered the degree of
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malfeasance and determined that Mother could purge her contempt by
better adherence to the court-ordered custody arrangement. The trial court
concluded, “Upon its review [of Father’s e]xceptions, this Court determined
that the Hearing Officer was well within her discretion to arrive at this
decision.” Trial Court Opinion, 5/29/15, at 8. Thus, notwithstanding
Father’s protestations to the contrary, both Hearing Officer Valles and the
trial court found Mother in contempt for consuming portions of Father’s
periods of physical custody but neither jurist believed that Mother’s
contumacious conduct warranted a punitive sanction. As the trial court’s
determination was free of legal and within the scope of its discretion, we do
not disturb it. P.H.D., supra, at 706 (“we are limited to determining
whether the trial court committed a clear abuse of discretion”).
Likewise, we reject Father’s related arguments that the trial court
embraced Hearing Officer Valles’s indifference toward Mother’s behavior
generally and failed to explain its rationale in the order dismissing his
exceptions. At the outset, we observe that Father neglected to proffer any
legal authority for his proposition that the trial court was obligated to
provide in its order dismissing Father’s exceptions an in-depth explanation of
its determination. Predictably, our independent research also failed to
reveal legal support for the principle that the court order must explain the
court’s reasons for denying exceptions to a master’s report and
recommendation. As Father failed to support this claim with legal argument
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or citation to relevant legal authority, it fails. See In re W.H., 25 A.3d 330,
339 n.3 (Pa.Super. 2011) (“where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”).
Furthermore, and in contrast to the remaining component of Father’s
argument, the trial court’s thorough Rule 1925(a) opinion cogently explained
its decision to dismiss Father’s exceptions. Stated plainly, the trial court
reasoned that Father’s challenges to the court’s denial of his exceptions were
either overly vague or baseless. Trial Court Opinion, 5/29/15, at 5, 7-8. As
it relates to the three exceptions where the trial court could at least deduce
Father’s core complaints relating to Mother’s delayed payment of his counsel
fees, her avoidance of Father’s multifaceted campaign to establish daily
contact with her, and her frolic and detour with J.R., Jr. following the
summer learning program, the trial court proffered cogent explanations for
each of these arguments. As discussed supra, we reviewed the court’s
rationale, rejected Father’s objections, and determined that no relief was
due. Father’s assertion that the trial court failed to explain the reasons for
its decision is baseless.
Finally, Father implies that the trial court avoided its judicial
obligations by entering the underlying order on the same afternoon that he
argued his exceptions. Taking a literal interpretation of the trial court’s
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statement during argument that it would review the transcripts of the
November 5, 2014 evidentiary hearing completely before resolving the
exceptions, Father argues that it was utterly impossible to review the 227-
page transcript and enter the order dismissing his exceptions on the same
afternoon. Hence, he speculates that the trial court did not conduct the
contemplated review of the entire record, and he assails the court’s integrity
and commitment to the judicial process.
Graciously, the trial court explained in its Rule 1925(a) opinion that
Father simply misunderstood its statement to “review the transcript” as a
promise to review the transcript and issue its own, presumably de novo,
ruling. In reality, however, the trial court simply reiterated its commitment
to review the record for an apparent abuse of discretion consistent with its
standard of review. Anderson v. Anderson, 822 A.2d 824, 830 (Pa.Super.
2003) (“in determining issues of credibility the master’s findings must be
given the fullest consideration for it was the Master who observed and heard
the testimony and demeanor of various witnesses.”). As the trial court
conducted the appropriate review of Hearing Officer Valles’s
recommendation and proposed order and determined that it was
appropriate, we rebuff Father’s misdirected attack on the trial court’s
integrity.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2016
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