J.R. v. L.T.

J-A23022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1870 WDA 2015

Appeal from the Order Entered November 3, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No: FD 07-003697-004

J.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

L.T.

Appellee No. 2002 WDA 2015

Appeal from the Order Entered December 18, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No: FD 07-003697-004

J.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

L.T.

Appellee No. 456 WDA 2016

Appeal from the Order Entered March 30, 2016
In the Court of Common Pleas of Allegheny County
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Family Court at No: FD 07-003697-004

BEFORE: LAZARUS, STABILE, and STRASSBURGER, * JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 21, 2017

Appellant, J.R. (“Father”), appeals pro se from the orders of court

entered in the Court of Common Pleas of Allegheny County (“trial court”) on

November 3, 2015, December 18, 2015, and March 30, 2016, following

contempt proceedings. Upon review, we affirm.

A panel of this court has previously summarized the parties’ factual

situation.

J.R., Jr., was born out of wedlock during April 2007 of Mother
and Father’s relationship. Since his birth, J.R., Jr. either resided
with Mother alone or with Mother and Father in an intact family.
For the first three years of their son’s life, Mother maintained
primary physical custody and Father exercised periods of partial
custody under an informal arrangement. On July 27, 2010,
Father filed a custody complaint seeking primary physical
custody. On the same date, he seized J.R., Jr. under the guise
of a pre-arranged custody exchange. He refused to return the
child to Mother unless she reconsidered her objection to
rekindling their romantic relationship. Mother countered Father’s
actions by contemporaneously filing a counterclaim for primary
physical custody and sole legal custody and an emergency
petition for relief pursuant to Pa.R.C.P. 1915.13, seeking the
immediate return of her son. On August 10, 2010, the trial court
entered an interim order directing J.R., Jr.’s immediate return to
Mother’s physical custody. That order awarded Father four
hours of supervised physical custody per week.

A subsequent order extended Father’s periods of physical
custody to alternating weekends, and on January 3, 2011, the
parties entered an interim consent agreement whereby they
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.

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shared physical custody on an alternating weekly basis. Since
then, the parties have litigated yearly custody or contempt-
related issues.

J.R. v. L.T., 391 WDA 2015, 495 WDA 2015, unpublished memorandum at

2-3 (Pa. Super. filed December 30, 2015). Following a custody trial in

February 2015, the trial court made findings of fact and entered a custody

order on March 24, 2015. Following the entry of this order, Father filed

numerous petitions seeking to find Mother in contempt.

In May 2015, Father brought a petition for contempt alleging
that Mother breached the March custody order. [The trial court]
set the matter before the hearing officer. However, Father
continued to bring similar petitions alleging Mother’s
noncompliance. [The trial court] consolidated these allegations
with the previous petition, and granted Father the ability to
present to the hearing officer evidence of any and every example
of noncompliance which he felt substantially impaired his
custodial rights. Hearing Officer Valles heard the case on August
26, 2015. Hearing Officer Valles determined that Mother was in
contempt for her minor noncompliance, but that she could purge
her contempt by strictly complying with the custody order. She
determined that no further sanction was appropriate. At
argument, [the trial court] agreed and dismissed Father’s
Exceptions.

Trial Court Opinion, 1/21/2016, at 1-2 (citations omitted). Father filed a

notice of appeal on November 23, 2015.1 After the trial court directed

Father’s compliance with Pa.R.A.P. 1925(b), Father filed a concise statement

on December 8, 2015. The trial court issued a Pa.R.A.P. 1925(a) Opinion on

January 21, 2016.

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1
This appeal is docketed at 1870 WDA 2015.

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Subsequently, Father continued to file numerous petitions with the

trial court, which lead to a second appeal.2

The roots of the latest conflict stemmed first from of [(sic)] a
temporary protection from abuse order, obtained by Mother
against Father, and then from the non-PFA Consent Agreement
they agreed to in lieu of a final hearing on the matter. Mother
sought protection after Father went to Mother’s place of
employment to confront her. [The trial court] had previously
noted Father’s history of stalking and harassing Mother in its 495
WDA 2015 opinion (relating to [the trial court’s] legal custody
award). On October 8, [2015,] the parties entered into a
consent agreement outlining, among other things, the
appropriate terms for communication. The Consent Order also
reserved Mother’s right to re-petition the [trial court] for a PFA
upon Father’s violation. The [trial court] draws attention to the
last paragraph of the Consent Order, which provides the times of
the child’s therapy appointment and exchanges of custody. Part
of the conflict arose from the fact that Mother works at the
facility where the child receives treatment, and where custody is
sometimes exchanged. Paragraph 12 sought to minimize any
potential conflict by adjusting the time of the custody exchange
until Mother could adjust the time of the appointment. Father
signed the agreement.

On November 3, 2015, Father brought a Petition for
Special Relief to [the trial court’s] very next motions day
following the signing of the Consent Agreement. At motions
court, Father argued he signed the Consent in a panic and under
duress. He argued he did not receive notice of the final PFA
hearing until the day before, and therefore could not hire
counsel in time. [FN3]. He alleged that the temporary PFA had
caused him to lose “sleep due to the stress caused by the
sudden realization that he was to appear in court the following
morning.” Finally, Father alleged dirty tricks. He argued that
Mother (or the [trial court]) purposely listed the temporary PFA
under a new different docket number to trip Father up. He
alleged that he first heard of the temporary PFA when he
____________________________________________

2
This appeal is docketed at 2002 WDA 2015.

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received a solicitation from an attorney seeking to represent
him. Father would have [the trial court] believe he was still
sleep deprived and too stressed to know what he was signing.
Curiously, the relief Father officially requested was not an
undoing of the Consent agreement, but rather an order forcing
Mother to send all legal correspondence via USPS Priority Mail.
However, he did articulate that he felt the whole matter should
be reconsidered. [The trial court] denied his requested relief.

On December 4, Father brought a nearly identical motion,
titled “Petition For Special Relief – Custody” alleging the same
duress, lack of notice, and docket number foul play when he
officially asked for the undoing of the Non-PFA Consent as well
as an expungement of the temporary PFA. Like his previous
motion, Father requested a redo. Mother’s counsel conveyed to
the [trial court] that the only reason she did not request counsel
fees for Father’s repetitive conduct was because their office
could not draft an answer and new matter in time. [The trial
court] denied Father’s requested relief, but cautioned him that it
would enter an order for attorney’s fees if Father presented
another frivolous motion regarding the temporary PFA or the
Non-PFA Consent Agreement.

On December 18, [2015,] Father brought a “Petition for
Contempt – Custody.” This time, Father alleged Mother had not
yet changed the child’s therapy appointment to allow the
custody schedule to return to normal – from 2:15 p.m. back to
3:00 p.m. – per Paragraph 12 of the October 8, 2015 Non-PFA
Consent Agreement. Paragraph 12 provides: “Without
establishing status quo, on a temporary basis, the parent
receiving the child shall pick up the child on Fridays at 2:15 P.M.
The parties acknowledge that this custody order is up on appeal
[405 WDA 2015]. Once the child’s speech therapy appointment
can be changed to a different date and time, the parties shall
revert to Fridays at 3:00 P.M. or after school exchange time.” At
motions argument, Mother provided documentation that she had
told Father she changed the child’s therapy appointment ten
days earlier. And yet, Father still brought her to [c]ourt. [The
trial court] denied Father’s petition to schedule a contempt
hearing on the matter, but granted Mother’s request for
attorney’s fees.

[FN3] The [trial court] notes that Father has routinely proceeded
without counsel throughout the history of this case. He has

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forgone representation since August 2014. This has not stopped
his extensive litigation, however. Father is not without means to
hire counsel, nor is he unfamiliar with [the trial court] or its
process.

Trial Court Opinion, 2/22/2016, at 2-5 (citations and footnotes omitted).

Father filed a notice of appeal on December 23, 2015. Following Father’s

compliance with Rule 1925(b), the trial court issued a Rule 1925(a) opinion

on February 22, 2016.

Father’s third appeal3 stems from the March 15, 2016 order, denying

Father’s petition to find Mother in contempt for violating the March 2015

custody order.

Father presented a Petition for Special Relief-Custody on October
6, 2015. The pleading was not titled “Petition for Contempt,”
but in any event contained allegations that Mother was not
complying with the custody order. [The trial court] set the
matter before Hearing Officer Valles on December 8, 2015. On
December 18, [2015,] the hearing officer released her findings.
She found two violating incidents: one which Mother removed
the child early from school; another where Mother failed to
return the Father’s telephone call. However, the hearing officer
recommended no sanctions or punishment. Mother was found to
be not in contempt of the other violations: 1) that she failed to
respond to every single message from Father on the Our Family
Wizard computer program; 2) that she failed to inform Father
that she traveled out of country with the child; and 3) failing to
inform Father that she signed the child up for basketball. Father
filed exceptions. At argument, the [trial court] dismissed
Father’s exceptions. [FN2].

[FN2] The [trial court] went further than Hearing Officer Valles,
finding that Mother was not in contempt at all.

____________________________________________

3
This appeal is docketed at 456 WDA 2016.

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Trial Court Opinion, 6/1/2016, at 2. On March 30, 2016, Father filed a

notice of appeal. Following Father’s compliance with Rule 1925(b), the trial

court entered an opinion on June 1, 2016. On July 19, 2016, this Court

consolidated Father’s appeals docketed at 1870 WDA 2015, 2002 WDA 2015,

and 456 WDA 2016.

Over the three above captioned cases, Father raises six total issues.

Father’s first four issues are in the consolidated docket 1870 WDA 2015 and

2002 WDA 2015, which we quote verbatim.

1. Did the [trial court] err in dismissing [Father’s] Exceptions to
the Hearing Officer’s Recommendations pursuant to 23
Pa.C.S.A. § 5323.g[.]

2. Did the [trial court] err in dismissing [Father’s] Exceptions
without explanation[.]

3. Did the [trial court] err in denying [Father’s] Petition for a
Contempt Hearing so that evidence and witness testimony
could be heard regarding [Mother’s] Contempt of the Court
Order as it relates to adhering to State Statute/Law as
specified in 23 Pa.C.S.A. §5323.g and following Case Law set
by the Superior Court of Pennsylvania[.]

4. Did the [trial court] err in accepting and signing [Mother’s]
purposed Order attached to a copy of [Mother’s] Response
and New Matters which had not been filed/placed on the
docket including certificate of service and served to [Father]
by [Mother] prior to the hearing as well as the refusing to
allow [Father] the opportunity to review and respond to the
document regarding Local Rule 208.3(a)[.]

Father’s Brief at 3-4 (sic). Father raises two additional issues in docket 456

WDA 2016, which we quote verbatim.

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[5.] Did the [trial court] err in dismissing [Father’s] Exceptions
to the Hearing Officer’s Recommendations pursuant to 23
Pa.C.S.A. § 5323.g[.]

[6.] Did the [trial court] err in dismissing [Father’s] Exceptions
without explanation?

Fathers Brief at 2 (sic).

Father’s first issue is that the trial court abused its discretion when it

found Mother in contempt on November 3, 2015, but failed to impose any

sanctions other than directing Mother to strictly comply with all orders of

court in this matter. Essentially, Father is arguing that the trial court was

too lenient with Mother. Our standard of review of a court order holding a

party in contempt is whether the trial court committed a clear abuse of

discretion. Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001) (citations

omitted). Moreover,
[e]ach 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.

Harcar v. Harcar, 982 A.2d 1230, 1235 (Pa. Super. 2009) (citation

omitted). Our custody statutes provide that

(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.

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(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.

23 Pa.C.S.A. § 5323(g).

As was the case in Father’s previous contempt proceedings, he cites to

Harcar for the proposition that the trial court abused its discretion by not

imposing sanctions after a finding of contempt. Father’s Brief at 9.

However, the instant matter is eminently distinguishable. In Harcar, a

panel of this Court found that the trial court abused its discretion when it

failed to impose sanctions on a mother who flagrantly disregarded a custody

order. Harcar, 982 A.2d at 1240. In that case, the trial court allowed

mother to travel with the child to the Republic of Turkey for the summer but

was required to return in August; however the mother failed to return with

the child for over 18 months. Id.

In the matter sub judice, the trial court found Mother in contempt for

failing to give Father notice of their son’s enrollment in bible camp from June

8 until June 12, for failing to use Our Family Wizard for a month, and for

failing to facilitate phone calls during a specific period of time. The trial

court found that these were technical violations of the custody order;

however, Father had incurred no harm. Furthermore, the trial court noted

that

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it did not see it necessary to ‘reverse’ the hearing officer to
eliminate the technical contempt findings when the end result
would be identical. Although these technical contempt findings
come without punishment, they are helpful to put Mother on
notice that any sort of trickery or playing dumb with [the trial
court’s] orders will not be tolerated.

Trial Court Opinion, 1/21/2016, at 6. Upon review, we find that the trial

court did not abuse its discretion when it found that no further sanctions

were necessary given the marginal nature of Mother’s noncompliance and

the lack of harm. Father’s argument fails.

Next we will address Father’s claims that the trial court did not provide

an explanation when it dismissed Father’s exceptions in the orders of

November 3, 2015, and March 30, 2016.4 Father attempted to raise this

exact issue in his previous appeal. A panel of this Court addressed this issue

in Father’s appeal in docket 494 WDA 2015. See J.R. v. L.T., 494 WDA

2015, 1/22/2016 (unpublished memorandum), at 11-12. As was the case in

that matter, Father fails to develop his argument or proffer any legal

authority for his proposition that the trial court was obligated to explain its

reasoning. Furthermore, the trial court in its Rule 1925(a) opinions

cogently explained its reasoning for dismissing Father’s exceptions. See

Trial Court Opinion, 1/21/2016, at 5-6; Trial Court Opinion, 2/22/2016, at 6-

9; Trial Court Opinion, 6/1/2016, at 5-7. Father’s claims fail.

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4
As the issues are identical we will address Father’s second and sixth issues
together.

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Father’s third issue is that the trial court denied his request for a

hearing on the contempt petition filed on December 8, 2015. Father fails to

develop this argument and therefore, the issue is waived. Even if this

argument were not waived, it is meritless as Father is not entitled to a

hearing if his petition does not make a prima facie case that Mother was in

contempt. Father asserted that Mother was in contempt for failing to

reschedule the child’s speech therapy appointment; however, there was no

order requiring her to do so. See Garr v. Peters, 773 A.2d 183, 189 (Pa.

Super. 2001) (“A party must have violated a court order to be found in civil

contempt. The complaining party has the burden of proving by a

preponderance of the evidence that a party violated a court order.”) (quoting

Sinaiko v. Sinaiko, 664 A.2d 1005, 1009-10 (Pa. Super 1995). Father’s

claim fails.

Father’s fourth issue is that the trial court should not have granted

Mother’s request for attorney’s fees following the denial of his December 8,

2015 contempt petition because of a number of procedural defects related to

service and filing of the pleading. Father fails to develop this argument in

his brief; therefore, the claim is waived. Even if the claim were not waived,

it is meritless. Mother’s answer and new matter was presented to the trial

court during the hearing on December 18, 2015, and had been previously

served on Father. See N.T. Hearing, 12/18/2015, at 6. Father’s fourth

claim fails.

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Father’s fifth issue, similar to his first issue, is that the trial court erred

when it failed to sanction Mother’s conduct and dismissed his exceptions to

the recommendation of the hearing officer on March 15, 2016. Father fails

to recognize that the trial court could not enter sanctions against Mother as

it did not find her in contempt. As discussed above, we review a contempt

ruling for an abuse of discretion. Garr, 773 A.2d at 189.

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.

P.H.D. v. R.R.D., 56 A.3d 702, 706 n. 7 (Pa. Super. 2012) (citing Stahl v.

Redcay, 897 A.2d 478, 489 (Pa. Super. 2006)).

Father’s petition alleges two purported instances of Mother’s contempt,

1) that she removed the child from school earlier because Mother was

getting married that day; and 2) Mother failed to have the child return a

scheduled phone call. Upon review, the trial court found that Mother did not

act with the requisite wrongful intent to be held in contempt. Mother

believed she had the authority to take the child out of school early and

admitted missing Father’s phone call. There was nothing in the record

establishing that Mother acted with wrongful intent; therefore, Father’s fifth

claim fails.

Finally, we address Mother’s request for sanctions. Pursuant to our

appellate rules,

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[i]n addition to other costs allowable by general rule or Act of
Assembly, an appellate court may award as further costs
damages as may be just, including

(1) a reasonable counsel fee and

(2) damages for delay at the rate of 6% per annum in
addition to legal interest,

if it determines that an appeal is frivolous or taken solely for
delay or that the conduct of the participant against whom costs
are to be imposed is dilatory, obdurate or vexatious. The
appellate court may remand the case to the trial court to
determine the amount of damages authorized by this rule.

Pa.R.A.P. 2744.

The instant matter encompasses Father’s eighth appeal since March

2015, includes frivolous issues which this Court previously addressed, fails to

develop his arguments, and fails to cite to proper legal authority. The trial

court described Father’s conduct as cyclical. We agree.

Father will bring an action for contempt alleging Mother violated
the custody order. The [trial court] sets the matter before the
hearing officer. The case would then matriculate from the
hearing officer to [the trial court] via the filing of exceptions.
Upon [the trial court’s] dismissal of Father’s exceptions, he
would appeal. Soon thereafter he would bring another contempt
petition alleging another instance of noncompliance. [The trial
court] would then be obligated, though not necessarily inclined,
to reset the process, relisting the matter upon Father’s well-
pleaded petition for contempt. [The trial court] has been
persuaded to relist the case especially when Mother failed to
appear for the motion. But the result would be the same.
Father’s petitions would fall just shy of frivolous, rendering
transparent his motivations.

Trial Court Opinion, 6/1/2016, at 1-2. Upon review of the record, we find

that Father’s appeals are frivolous, dilatory, obdurate, and vexatious and his

abuse of legal process is unwarranted. See Pa.R.A.P. 2744. Therefore, we

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award a reasonable counsel fee to Mother. The matter will be remanded to

the trial court for further proceedings to determine a reasonable counsel fee.

Orders affirmed. Remanded for further proceedings in accordance

with the forgoing memorandum. Applications to dismiss denied. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2017

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