J-A28017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.E.W., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J.D.F.,
Appellant No. 1185 EDA 2015
Appeal from the Order entered April 9, 2015
In the Court of Common Pleas of Delaware County
Domestic Relations, at No(s): 2006-006840
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY PANELLA, J. FILED JANUARY 25, 2016
J.D.F. (“Father”), acting pro se, appeals from the order entered on
April 9, 2015, in the Court of Common Pleas of Delaware County, which
denied Father’s contempt petition against M.E.W. (“Mother”) regarding their
child, C.F., born in September 1998. We affirm.
Father and Mother are the parents of C.F., and M.F., born in March
2000 (collectively, the “Children”). The original custody stipulation was
entered on December 19, 2006. The existing custody order was entered on
February 7, 2014.
On December 1, 2014, Father filed a petition for contempt of the
custody order against Mother regarding M.F. On December 10, 2014, the
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trial court held a hearing on the petition. The trial court denied the petition. 1
Father filed a timely motion for reconsideration.
During the pendency of the motion for reconsideration, C.F. entered
inpatient mental health treatment without Father’s consent, and without
Father being informed of the decision. On January 21, 2015, Father filed a
second petition for contempt of the custody order against Mother regarding
C.F.
In both petitions, Father alleged that Mother was in contempt of the
joint legal custody portion of the existing custody order. In the petitions,
Father asserted that Mother knowingly made important decisions regarding
inpatient mental health treatment for both of the Children without his
consent, and without informing him of the decisions, in violation of the joint
legal custody provisions of the existing custody order.
On March 25, 2015, the trial court held a hearing on both the motion
for reconsideration concerning M.F. and the petition for contempt concerning
C.F. In an order entered on April 9, 2015, the trial court denied the motion
for reconsideration concerning M.F., and the petition for contempt
concerning C.F.
Father timely filed a notice of appeal in relation to the order denying
the petition for contempt concerning C.F., but did not file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1
Although the December 11, 2014 order is not entered on the trial court’s
docket and does not appear to be part of the certified record, the trial court
refers to it in its order entered on April 9, 2015.
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1925(a)(i) and (b).2 In an order entered on April 24, 2015, the trial court
directed Father to file a Rule 1925(b) statement within twenty-one days. As
no party alleges any prejudice from Father’s separate, late filing of the Rule
1925(b) statement, we will proceed to review the issue he raises on appeal.
See In re K.T.E.L., 983 A.2d 745, 747-748 (Pa. Super. 2009) (finding that
the appellant’s failure to simultaneously file a Rule 1925(b) statement did
not result in waiver of all issues for appeal where the appellant later filed the
Statement, and there was no allegation of prejudice from the late filing).
On appeal, Father presents the following issue for our review.
Whether the [trial court] erred in its decision that
Mother/Appellee was not in violation of the Custody Order
providing for Joint Legal Custody when it failed to hold Mother
in contempt for not informing and/or consulting Father prior
to the minor child (C.F.) (age 16) being placed into a mental
health facility?
Father’s Brief, at 4.
Relying on K.H. v. J.R., 826 A.2d 863, 874 (Pa. 2003), a negligence
case, Father argues that legal custody is defined by statute as the legal right
to make major decisions affecting the best interest of a minor child,
2
In a per curiam order entered on June 15, 2015, this Court explained that
the portion of the order entered on April 9, 2015 that denied Father’s motion
for reconsideration of the trial court’s December 11, 2014 order regarding
M.F. was not properly before this Court on appeal, as Father failed to
preserve a timely appeal. See Valentine v. Wroten, 580 A.2d 757 (Pa.
Super 1990) (appeal will not lie from the denial a motion for
reconsideration). Our order explained that only the portion of the order
entered on April 9, 2015 that denied the petition for contempt relating to
C.F. was preserved for review on appeal.
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including but not limited to, medical, religious, and educational decisions.
Father contends that Mother violated the provision in the existing custody
order providing for joint legal custody by unilaterally making the mental
health decisions for C.F., and that she should be held in contempt of the law
regarding joint legal custody.
Initially, we observe that, as the existing custody order in this matter
was entered in February 2014, and the hearing on the contempt petition at
issue was held in March 2015, the Child Custody Act, (“the Act”), 23
Pa.C.S.A. § 5321 is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.
Super. 2012) (holding that, if the custody evidentiary proceeding
commences on or after the effective date of the Act, i.e., January 24, 2011,
the provisions of the Act apply).
We have stated that
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation
omitted).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard.
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
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the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
Id., at 18-19 (quotation marks and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338.
In reviewing orders dealing with contempt, this Court must consider
that each court is the exclusive judge of contempt against its process. See
Garr v. Peters, 772 A.2d 183, 189 (Pa. Super. 2001). When reviewing an
appeal from a contempt order, this Court must place great reliance upon the
discretion of the trial court. See P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa.
Super. 2012). In proceedings for civil contempt of court, the general rule is
that the burden of proof must rest with the complaining party to
demonstrate the respondent is in noncompliance with the court order. See
MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012).
Furthermore, to sustain a finding of civil contempt, the complainant
must prove, by a preponderance of evidence, that: (1) the contemnor had
notice of the specific order or decree which he is alleged to have disobeyed;
(2) the act constituting the contemnor’s violation was volitional; and (3) the
contemnor acted with wrongful intent. See id.; P.H.D., 56 A.3d at 706 n.7.
This Court will only reverse a trial court order denying a civil contempt
petition upon a showing that the trial court misapplied the law or exercised
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its discretion in a manner lacking reason. See Harcar v. Harcar, 982 A.2d
1230, 1234 (Pa. Super 2009).
In this case, the trial court determined that Father failed to present
any evidence that Mother made the decisions on behalf of C.F. See Trial
Court Opinion, 6/3/15, at 4. Moreover, the trial court found that Mother’s
withholding the information regarding C.F.’s mental health issues was not
motivated by wrongful intent. See id.3 Rather, the trial court found it was in
the best interests of the child, where C.F. had requested Mother’s assistance
in seeking professional mental health treatment, for Mother to follow C.F.’s
desire for confidentiality. See id., at 8-9.
Upon careful review of the certified record, including the notes of
testimony, the parties’ briefs, the trial court opinion entered June 3, 2015,
3
The trial court also refused to hold Mother in contempt because Mother had
a good faith belief that the Mental Health Procedures Act (“MPHA”), 23
Pa.C.S.A. § 50 P.S. § 7101 et seq., prohibited Mother from informing Father
about C.F.’s admission to the mental health treatment facility. See Trial
Court Opinion, 6/3/15, at 4. In its opinion, the trial court also discussed the
issue of whether the trial court misapplied the MPHA, since Father
specifically raised that issue in his concise statement. Father, however,
attempts to discuss the trial court’s application of the MPHA in his brief,
asserting that it was erroneous, without having raised the issue in the
statement of questions involved section of his brief. We, therefore, find that
he has waived his challenge to the trial court’s application of the MPHA. See
Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (stating that an appellant waives a claim by failing to raise
it as an issue in both his concise statement and his statement of questions
involved section of his brief on appeal). Had Father raised the issue, we
would find that the trial court’s reasoning with regard to Father’s first issue
was sufficient for us to conclude that the trial court did not err or abuse its
discretion in determining that Mother was not in contempt of the existing
custody order.
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and the applicable law, we discern no error of law or abuse of discretion by
the trial court. Accordingly, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2016
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