J-S73043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.F.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
B.S.B. :
:
Appellant : No. 1010 WDA 2018
Appeal from the Order Entered June 7, 2018
In the Court of Common Pleas of Somerset County Civil Division at
No(s): 527 Civil 2008
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 04, 2019
Appellant, B.S.B.1, appeals pro se from the order entered on June 7,
2018, denying relief on his pro se motion for contempt of court for a violation
of a custody order. We affirm.
We briefly set forth the facts and procedural history of this case as
follows. On December 5, 2017, the trial court entered an order memorializing
a custody agreement between Appellant and C.F.M. (Mother), regarding their
two children, a son (born August, 2005) and a daughter (born October, 2006).
The order gave Appellant and Mother shared legal custody of the children.
Because Appellant has been incarcerated since 2015, the trial court gave
Mother primary physical custody. Relevant to this appeal, the custody order
____________________________________________
1 As this case involves a custody dispute, we refer to the parties by their initials
to protect the identity of the children. We have amended the caption
accordingly.
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directed Mother, inter alia, to: 1) provide Appellant with a copy of a car
accident report pertaining to their daughter; 2) refrain from relocating the
children’s residence in a manner that “significantly impairs the ability of the
other party to exercise custodial rights[;]” and, 3) send Appellant the
children’s school photographs and periodically send additional photographs “at
least every three months or so.” N.T., 12/5/2017, at 18- 21.
On January 5, 2018, Appellant filed a pro se motion for contempt of
court for a violation of the December 5, 2017 custody order. Appellant alleged
that Mother changed residences without notifying him and failed to send him
photographs of the children and his daughter’s car accident report. The trial
court held a custody conference and hearing on the contempt petition on June
7, 2018. At its conclusion, the trial court determined that Mother had not
willfully violated the custody agreement and denied Appellant’s motion for
contempt. Appellant filed a pro se notice of appeal, along with a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
on July 6, 2018. On August 1, 2018, the trial court filed an opinion pursuant
to Pa.R.A.P. 1925(a), relying upon “the rationale and reasons for the [o]rder
[as] fully and concisely explained in the transcript of the [June 7, 2018]
hearing that [was] already filed of record.” Trial Court Opinion, 8/1/2018, at
1.
On appeal, Appellant claims that the trial court abused its discretion in
denying his petition for contempt. Our standard of review is as follows:
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When we review a trial court's finding of contempt, 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.
This Court also has stated that each court is the exclusive judge
of contempts against its process.
G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (internal citation and
quotations omitted). We previously determined:
A court may exercise its civil contempt power to enforce
compliance with its orders for the benefit of the party in whose
favor the order runs but not to inflict punishment. 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 evidence that a party violated a court order.
Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001) (internal citation
omitted).
Upon review of the contempt hearing, we discern no abuse of discretion
in denying Appellant’s request to hold Mother in contempt for violating the
terms of the parties’ custody agreement. The trial court systematically
addressed each of Appellant’s contentions individually. First, the trial court
recognized that Mother and children had moved, but only “two or three” miles
from their original location which did not significantly impair Appellant’s ability
to exercise custodial rights so as to constitute “relocation” within the meaning
of the custody statute found at 23 Pa.C.S.A. § 5337. N.T., 6/7/2018, at 3-4;
see 23 Pa.C.S.A. § 5322(a) (defining relocation as “[a] change in the
residence of [a] child which significantly impairs the ability of a nonrelocating
party to exercise custodial rights[]”). Appellant admitted that he received his
daughter’s school picture in February 2018 with a letter explaining that Mother
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did not send their son’s photo because she did not like it. Id. at 4. Appellant
received two photos of the children in May 2018. Id. Such actions were in
keeping with the parties’ agreement to send the children’s school photographs
and additional photos within three months. Moreover, the parties additionally
agreed that Mother would send photographs even more frequently, once every
two months. Id. at 6. Finally, Appellant conceded that Mother’s counsel
provided him with a police report of their daughter’s car accident. Id. at 12.
However, Appellant complained that the police report did not contain
information regarding the extent of his daughter’s injuries. Id. at 13. The
trial court determined that Mother had complied by sending the police report
as agreed. Id. at 16. Moreover, the trial court was satisfied that daughter’s
“injuries have more or less resolved, and with the exception of [potential]
scarring[,] that there is no further on-going treatment with regard to any of
these injuries” which would require Mother to provide Appellant with additional
information outside of the police report. Id. at 15. Based upon all of the
foregoing, we discern no abuse of discretion in denying Appellant relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2019
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