J-A20005-22
2022 PA Super 175
NICOLE EVA GROSS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JARED ZALMAN MINTZ : No. 959 EDA 2022
Appeal from the Order Entered March 1, 2022
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2017-28078
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
OPINION BY McCAFFERY, J.: FILED OCTOBER 13, 2022
Nicole Eva Gross (Appellant) appeals from the March 1, 2022, order
holding her in contempt (Contempt Order) for violating prior custody orders,
awarding $20,000 in attorney’s fees to Jared Zalman Mintz (Appellee), and
prohibiting her from utilizing legal proceedings stemming from an incident in
New York without prior approval by the trial court (Gag Order Provision). After
careful review, we affirm.
The trial court explained the lengthy factual and procedural history of
this case, leading up to the Contempt Order, as follows:
This case has involved a long and complicated series of child
custody disputes between [Appellant] . . . and [Appellee]. . . . The
parties have three children — twin girls now 14 years old and a
son now 10 years old. The proceedings conducted before the
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* Retired Senior Judge assigned to the Superior Court.
J-A20005-22
undersigned arose from a number of contempt petitions filed by
each party against the other. Trial on the petitions was held on
December 8, 2021, January 20, 2022, and February 8, 2022. On
March 1, 2022, the [c]ourt issued a Memorandum and Order [(the
Contempt Order)] which, inter alia, held [Appellant] in contempt
in two respects, awarded certain relief for such contempt, and
directed the appointment of a Parenting Coordinator.
* * *
The docket reflects a nearly continual history of disputes
since the initial filing of a Complaint in Divorce in December of
2017. The facts set forth in this [o]pinion are limited to those
relevant to the present appeal.
The central incident occurred while the family was staying at
the TWA Hotel at the JFK Airport in New York on the evening of
June 30 and the morning of July 1, 2021, so that the two
daughters could take a flight to a “teen tour” in California
departing that morning. At that point in time, the parties had
shared legal and physical custody of the children, pursuant to a
Custody Order dated May 17, 2019.1 The arrangements for the
overnight stay in New York were reached with the participation of
a Parenting Coordinator that had been assisting the parties since
early 2021. The plan was that [Appellant] and the daughters
would stay in one hotel room and [Appellee] and the son in a
separate room; the two rooms were close by on the same hallway.
1Certain modifications to the custody schedule were made
by an Agreed Custody Order dated March 25, 2021. Those
modifications are not relevant to any issue raised on this
appeal.
During the evening of June 30, 2021, there was an
encounter between the parents at the hotel, the nature of which
was sharply disputed. [Appellant] assert[ed] that [Appellee]
assaulted her and threatened one or more of the children. She
also allege[d] that [Appellee] assaulted their son the next
morning. [Appellee] denie[d] any such conduct. On the morning
of July 1, as a result of a report made by [Appellant] to hotel
security, [Appellee] was arrested by law enforcement and charged
with violations of New York criminal law.
An arraignment was held in the Criminal Court of the City of
New York, County of Queens (“the New York Court”), on the
evening of July 1, 202[1]. [Appellee] was represented by an
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attorney from the Queens Defenders. No testimony was
presented, but the judge heard argument from both the Assistant
District Attorney and [Appellee]’s counsel on the scope of orders
for protection from abuse to be issued. (Ex. D-22.) The New York
Court entered Temporary Orders of Protection against [Appellee]
— an Order of full protection for [Appellant] and Orders of limited
protection for the children [(the “New York Orders”)].2. . .
2 The Order for full protection of [Appellant] was admitted
at trial as Exhibit P-5(A) (erroneously cited in the [c]ourt’s
Memorandum of March 1, 2022, as Exhibit P-5(B)). The
record does not appear to have legible copies of the Orders
for limited protection of the children.
On Friday, July 9, 2021, [Appellee] filed in the present
action [an] Emergency Petition for Contempt and Enforcement of
Custody Order. . . . The Emergency Petition recited the [New York
Orders]. It further averred that [Appellant], improperly relying on
the “limited” Orders for the children, was using self-help by
depriving [Appellee] of access to the children, in violation of the
Custody Order in effect. Later that day, this [c]ourt, by the
Honorable Kelly C. Wall, issued an Order that she would hold a
telephone conference on the Emergency Petition during the week
of July 12, 2021.
On the morning of the next business day, Monday, July 12,
2021, [Appellant] initiated a protection from abuse (PFA)
proceeding against [Appellee] on behalf of herself and the three
children, docketed at No. 2021-15058.3 [Appellant]’s [PFA
p]etition . . . was based largely on the incident in New York and
the [New York Orders]. After an ex parte hearing the same day,
this [c]ourt, by the Honorable Daniel J. Clifford, granted a
[t]emporary [PFA] [o]rder. The [t]emporary [o]rder provided,
with respect to child custody, as follows: “Custody matter
pending. Both parties represented by counsel. MCAP [child
advocate] counsel can facilitate appropriate contact pending
hearing.”. . . The Temporary Order was docketed at 2:11 p.m.
3 [Appellant]’s counsel stated that he had no objection to
the [c]ourt’s taking judicial notice of the record of the three
PFA proceedings brought by [Appellant] in July, September,
and October of 2021. [N.T.,] 12/8/21, at 144; [N.T.],
2/8/22, at 23-24.[]
Also on July 12, 2021, Judge Wall held the telephone
conference on [Appellee]’s Emergency Petition in the present
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case. Following the conference, Judge Wall issued an [o]rder
dated July 12, 2021 [(“July 12th Order”)], docketed on Tuesday,
July 13, 2021. Paragraph 1 of the [July 12th Order] provided:
“[Appellee] shall resume his custody schedule on Wednesday with
all three children pursuant to the custody order dated May 17,
2019.” [Order, 7/12/21, at ¶ 1.] The [July 12th Order] also
included the following prohibition: “[Appellant] shall not interfere,
restrict[,] or seek to engage in self-help that would vary or restrict
physical custody per the May 17, 2019 order.” [Id. at ¶ 5
(emphasis omitted)].
On July 14 and 15, 2021, despite Judge Wall’s [July 12 th]
Order, [Appellant] withheld the parties’ son from [Appellee], even
though he was scheduled for custody on those days. [N.T.,]
12/8/21, at 145-49; Ex. P-17, P-18.[] Following an additional
telephone conference on the Emergency Petition on July 16, 2021,
Judge Wall entered a separate [o]rder of that date [(“July 16 th
Order”)], providing in part: “[Appellant] shall not utilize the New
York Orders and/or provide them to third parties in an attempt to
prevent [Appellee] from exercising his custody.” [Order, 7/16/21,
at ¶ 3]. There is no question that [Appellant] was aware of [the
July 16th] Order: she signed and filed a pro se Notice of Appeal
from the [July 16th] Order to the Superior Court on August 16,
2021.4
4 The appeal was quashed by the Superior Court. Gross v.
Mintz, No. 1669 EDA 2021 (Pa. Super. Sept[.] 7, 2021). . .
.
At some unspecified point in July, [Appellant] dismissed the
Parenting Coordinator that had been assisting the parties. [N.T.,]
12/8/21, at 109-10, 201.[]
On July 31, 2021, the New York State Office of Children and
Family Services [(“NYOCFS”)] issued a letter reporting on the
results of its investigation into the report of suspected child abuse
or maltreatment arising from the hotel incident. The agency found
that the report was “unfounded” — i.e., that there was no
“believable proof (credible evidence) that a child was abused or
maltreated.”
On August 5, 2021, [Appellant], represented by counsel,
filed a Praecipe to withdraw without prejudice the PFA Petition that
she had filed on July 12, 2021. By Order dated August 6, 2021,
the [c]ourt approved the withdrawal and vacated the Temporary
Order against Father.
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On August 9, 2021, the Pennsylvania Department of Human
Services issued a letter reporting on its own investigation of
suspected child abuse of the parties’ son and determined that it
was “[u]nfounded.”
On September 11, 2021, [Appellant] submitted a report to
the New York Police Department, complaining that [Appellee] was
in contempt of the New York Orders. Insofar as the police report
indicates, the conduct alleged against [Appellee] was that he had
contacted [Appellant] to ask when he could “get my kids.” [N.T.,]
12/8/21, at 102-03.[] Upon review of the transcript of the
arraignment, the police dismissed the complaint. [Id.] at 104-05.
...
On September 29, 2021, [Appellant] initiated another PFA
proceeding against [Appellee] in this [c]ourt by filing a [PFA]
Petition . . . on behalf of the children, docketed at No. 2021-
19601. Paragraph 17 of the [PFA] Petition contained the following
requests in boldface and all capital letters:5
[Appellant] is pleading for sole physical and legal custody of
3 minor children no contact between [Appellee] and children
during interval while criminal matters proceed in New York
and pending results of final disposition in criminal matters.
* * *
[Appellant] wishes to have a Judge[’]s order to the
Prothonotary to register the NY Order in PA[.]
[Appellant] wishes for Judge to Notice [sic] that this PFA
supersedes all custody orders[.]
[Appellant] requests no MCAP granted in order to preserve
children as victim[’]s witness for NY criminal case[.]
[PFA Petition, 9/29/21, at 3 (boldface and capitalization omitted).]
5 Although the [PFA] Petition is on a standard computer-
generated form, the use of boldface and all capital letters
indicates an insertion specifically requested by the
petitioner.
[Appellant]’s handwritten statement within the [PFA]
Petition made repeated reference to the New York proceedings,
including the criminal charges. The statement asserted:
“[Appellee] arrested 7/1/2021 — protection orders (criminal NY
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state) . . .” and further asserted: “NY CPS confirmed 7/9/2021:
‘confirmed its a full stayaway order of protection for you and the
children against [Appellee] that is enforceable across the
country.’”6 At an ex parte hearing held the same day before the
Honorable Rhonda Lee Daniele, [Appellant] again made extensive
reference to the New York Orders. . . . As a result of the Petition
and ex parte hearing, Judge Daniele entered a Temporary [PFA]
Order on September 29, 2021, ordering [Appellee] to have no
contact with the children and superseding all prior custody orders.
6 This “confirmation” was apparently based on a text
message to [Appellant] from an official in New York, stating,
apparently incorrectly, that the Order of Protection for the
children was a “full stayaway order.” The message was not
offered in evidence at the trial of the present case but was
attached to [Appellant]’s PFA Petition.
At trial in the present case, when [Appellant] was confronted
with a copy of her September 29 Petition that appeared to “utilize
the New York Orders and/or provide them to third parties in an
attempt to prevent [Appellee] from exercising his custody,” as
prohibited by Judge Wall’s Order of July 16, 2021, [Appellant]’s
testimony was evasive and disingenuous:
Q. [By Appellee’s counsel:] . . . How many petitions from
abuse did you file after that based on the New York order?
A. Zero. . . .
Q. Let me rephrase it. Did you file any abuse petitions in
this courthouse after Judge Wall’s order where you used the
New York protection?
A. No.
Q. No? Are you sure about that?
A. Maybe you don’t understand my answer. Can I elaborate,
Judge, Your Honor?
Q. Did you file —
THE COURT: Why don’t you elaborate. Go ahead.
THE WITNESS: I filed a petition on behalf of the children in
September because I had multiple, multiple interactions
with the DA prosecutor, including the Second Chief Deputy
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Neiberg, the entire Queens DA[,] who called me multiple
times to say she was highly concerned about my case.
There was an outstanding warrant for [Appellee]’s arrest in
New York, and he was refusing to turn himself in.
THE COURT: Did that petition for a PFA that you filed refer
to the New York order?
THE WITNESS: It referred to it in part. And, in addition, I
also that same week had received a phone call from Children
and Youth that there were multiple phone calls —
THE COURT: Okay. The answer is that that petition did refer
to the New York order?
THE WITNESS: No, not the New York order, the New York
assault. The New York order was my PFA.
[Appellee’s counsel]: Wait a minute.
THE WITNESS: I don’t understand the question.
[N.T., 1/20/22, at 94-96].
Later in cross-examination, [Appellant] acknowledged that
in petitioning for a PFA order, she understood that the requested
relief would deprive Father of his custody time:
Q. [Appellant], did you understand that every time you went
to a court to get a temporary ex parte order that during the
course of that order, [Appellee] wasn’t going to be seeing
his children? Didn’t you understand that that was going to
affect custody? Weren’t you requesting in each of your
petitions that the children not have access to their father?
A. Yes.
Q. Okay.
A. I was requesting protection from abuse.
[Id. at 104-05].
Nevertheless, [Appellant] denied that her September 29[th
PFA] Petition was in violation of Judge Wall’s Order of July 16,
2021, because actual copies of the New York Orders were not
attached to the Petition. This argument was pressed by
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[Appellant]’s counsel, and [Appellant] herself joined in from the
witness stand:
[Appellant’s counsel]: [Appellee’s] cross-examination
involves [Appellant]’s use of the New York protection order
or including it in a filing — in a PFA filing. And what’s
attached here [in the September 29 Petition] is not a
protection order in New York; it’s a list of charges that are
outstanding or were filed — I’m not saying they’re
outstanding -- were filed against [Appellee]. . . .
THE COURT: All right.
THE WITNESS [Appellant]: I did not attach —
THE COURT: The next to last page [of the Petition] does say
. . . under Item 7: [NYOCFS] confirmed 7/9/2021, quote,
confirmed it’s a full stay-away order of protection for you
and the children against dad that is enforceable across the
country, close quote. That sounds to me like a use of an
order or an alleged order from New York. Am I missing
something?
THE WITNESS: It says prior acts —
THE COURT: Excuse me.
[Appellant’s counsel]: It’s a reference — it is a reference to
an order, but I don’t think that she was precluded from
introducing what happened in New York. She is not relying
on it —
THE COURT: I understand that position. But it looks to me
like this document does more than simply refer to the
incident. It refers to alleged order or orders issued by New
York State. Doesn’t it?
[Appellant’s counsel]: It makes reference to it, yes.
THE COURT: All right.
[Appellant’s counsel]: I can’t argue that it doesn’t.
THE COURT: So I don’t follow your objection, then.
[Appellant’s counsel]: My objection was that the order
wasn’t attached. She didn’t have the order in her hands.
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THE WITNESS: So, yeah. I mean, I didn’t attach any orders
to my filing.
[Id. at 98-100.]
On October 7, 2021, all proceedings against [Appellee] in
the New York Court were dismissed. On the next day, October 8,
2021, [Appellant] filed in this [c]ourt yet another PFA Petition
against [Appellee], this time solely on her own behalf, docketed
at No. 2021-20162. It is not clear whether [Appellant] was at this
time aware of the dismissal of the New York proceedings against
[Appellee]. In any event, the Petition again made extensive
reference to the incident at the New York airport hotel and
included a copy of the Order of Protection for [Appellant] entered
by the New York Court. At an ex parte hearing on October 8,
2021, a Temporary PFA Order was issued by the Honorable Todd
D. Eisenberg on behalf of [Appellant].
On October 12, 2021, in the prior PFA matter brought on
behalf of the children, Judge Eisenberg issued an Amended Order,
docketed October 14, 2021, denying a final PFA order on
[Appellant]’s Petition on behalf of the children (i.e., the Petition
filed September 29, 2021). Nevertheless, during the period from
September 29, 2021[] until October 12, 2021, [Appellee] could
have no contact with the children.
On November 9, 2021, a final hearing was held before Judge
Daniele on this latest PFA Petition. The hearing included
testimony by both [Appellant] and [Appellee], photographs
presented by [Appellant] to show her alleged injuries from the
New York incident, and two videos, from two different
perspectives, taken in the hotel hallway by hotel security cameras
— one on the evening of June 30, 2021, and the other the next
morning. On the basis of all the evidence, Judge Daniele denied
a final PFA order. In doing so, she issued from the Bench
extensive findings, including the following:
Let me also comment that clearly the eight seconds or so
that [Appellee] appeared [on the videos] to have been
within the door frame of her room, although I heard some
aggression in the way he knocked on the door, I didn’t hear
any aggression once he had gained access to the room, and
the only thing I heard was [Appellant’s] screaming.
Could she have been setting him up? I guess it’s possible,
I don’t know. Quite frankly, I think one — that’s one
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explanation that could be possible. I think she has tried to
exaggerate her testimony in such a way that it certainly
causes me to pause with respect to believing her testimony.
She exaggerated her injuries that were . . . a direct result
of this particular incident. Some of these injuries she has
since acknowledged that they occurred at an earlier point in
time, and I think her attempt to exaggerate them in today’s
hearing, cause[s] me to be not sure of whether she’s telling
the truth or not.
I’m on the fence, haven’t been pushed off the fence,
therefore the burden of proof is not sustained, the petition
is denied.
[N.T., 11/9/21, at 154-55.]
On November 24, 2021, [Appellant] took the son out of
school early, before [Appellee] could pick up the son at the
scheduled time to begin his custody period.
As noted above, trial on various petitions by both parties
was held over three days between December 2021 and February
2022. In addition to his own testimony denying any assault or
abuse at the New York hotel, [Appellee] presented the testimony
of two child advocates who had served as counsel for the parties’
children, both of whom testified that they found no evidence of
abuse of the children. [N.T.,] 12/8/21, at 42-91.[] [Appellant]
testified to [an] assault and threats by [Appellee] at the hotel.
[Appellant] also called her own mother (the children’s maternal
grandmother), who testified that the parties’ daughters had a
good relationship with [Appellant] and thrived under her care and
that they preferred staying with [Appellant]. The [c]ourt also
viewed the two videos taken in the hotel hallway — the same
videos that had been viewed by Judge Daniele in the prior PFA
hearing. [Id.] at 161-62; [N.T.,] 1/20/22, at 154-57.[]7 Despite
[Appellant]’s repeated assertions that the videos were proof of
[Appellee]’s abusive behavior,8 the [c]ourt saw no assault or
abuse in the videos.
7 The first video was marked as Exhibit P-27. The second
video was not marked or offered in evidence.
8 “He ran through me, assaulted me, and went after our
daughter. . . . It’s on the video.” [N.T.,] 1/20/22, at 109.[]
“Q. There’s nothing in this [police report] that says that he
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charged at either of your girls. A. But the video speaks for
itself.” [Id.] at 112. “Q. Are you saying that on the video
he grabbed your arm outside the room? A. Absolutely.”
[Id.] at 153. [Appellant]’s counsel made the same
assertion: “I’m going to be showing video to show exactly
what occurred in that New York hotel room.” [Id.] at 31.[]
In a Memorandum and Order dated March 1, 2022, the
[c]ourt found [Appellant] in contempt in two respects. First,
[Appellant]’s filing of the Petition for [PFA] on September 29,
2021, making repeated references to the protection orders
entered in the New York Court, constituted a contempt of
paragraph 3 of Judge Wall’s Order of July 16, 2022. Second,
[Appellant]’s withholding of the son from [Appellee] on July 14
and 15, 2021, and her early pickup of the son from school on
November 24, 2021, constituted contempt of the Custody Order
of May 17, 2019, as reconfirmed in Judge Wall’s Order of July 12,
2021.
The [c]ourt ordered various remedies for these acts of
contempt. On the violation of Judge Wall’s Order of July 16, 2021,
since [Appellant] persisted in unreasonably construing what
constituted “utiliz[ation of] the New York Orders” and what
constituted “an attempt to prevent [Appellee] from exercising his
custody,” the [c]ourt broadened the scope of Judge Wall’s
restriction. It prohibited [Appellant] from[,]
making any use of the legal proceedings in the State of New
York arising out of or relating to incidents at the TWA Hotel
on June 30 and/or July 1, 2021, including the arrest of
[Appellee], the charges brought against him, and any and
all orders of protection issued by the courts of New York,
unless [Appellant] has obtained prior approval by this
[c]ourt for such use upon a showing of good cause. As used
herein, the term “any use” includes, but is not limited to,
referring to such proceedings and/or providing copies of
documents issued in the course of such proceedings to any
court, government office, or child welfare agency.
[Order, 3/1/22, ¶ 2.]9[, 1]
____________________________________________
1 This is the Gag Order Provision that is the subject of Appellant’s third claim,
discussed infra.
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9 The [Contempt] Order made an exception permitting
[Appellant] to use the New York proceedings “by way of
defense to any claim brought against her by [Appellee]
arising out of such proceedings.”
On the violation of the custody schedule, the [c]ourt
awarded [Appellee] two consecutive makeup days with the
parties’ son and set forth a process to determine how those
makeup days would be scheduled. On [Appellee]’s request for
attorney fees in the amount of $63,734.80, the [c]ourt awarded
[Appellee] attorney[’s] fees in the amount of $20,000. Finally,
the [c]ourt ordered the appointment of a new Parenting
Coordinator.10
10 While it granted this relief, the [c]ourt rejected other
claims of contempt asserted by [Appellee]. In particular,
the [c]ourt ruled that [Appellant]’s filing of a PFA Petition on
July 12, 2021, did not constitute contempt because it
predated the entry of the above-referenced Orders by Judge
Wall; and that the filing of a PFA Petition on October 8, 2021,
did not constitute contempt because it was not filed on
behalf of the children and did not, in Judge Wall’s words
“attempt to prevent [Appellee] from exercising his custody.”
The [c]ourt ruled that [Appellant]’s conduct in connection
with the arrest and criminal charges against [Appellee] in
New York, while it may be otherwise actionable, did not
constitute contempt of any order of this [c]ourt. Finally,
because of the possibility that the deprival of visitations by
the 14-year-old daughters may have resulted from their
own resistance rather than [Appellant]’s willful refusal, the
[c]ourt declined to hold [Appellant] in contempt in this
regard. [Appellee] has not cross-appealed from any of
these rulings.
Trial Ct. Amended Op., 5/6/22, at 1-13 (some citations to the record omitted).
Appellant filed a timely notice of appeal from the Contempt Order on
March 29, 2022, and she filed a Pa.R.A.P. 1925(b) statement on April 7, 2022.2
____________________________________________
2 It does not appear from the record that the trial court ordered Appellant to
file a Rule 1925(b) statement.
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The trial court issued a Rule 1925(a) opinion on May 5, 2022, and an amended
Rule 1925(a) opinion on May 6, 2022.
Appellant presents one general question for our review: “Did the trial
court err or abuse its discretion in holding [Appellant] in contempt of court
and awarding attorney[’s] fees to [Appellee] as a sanction for violating the
trial court’s prior custody orders?” Appellant’s Brief at 9. In the argument
section of her brief, Appellant asserts three distinct grounds for reversing the
Contempt Order in whole or in part. First, Appellant alleges that the terms of
the prior custody orders were unclear and/or ambiguous. Id. at 34-37.
Second, Appellant claims that Appellee failed to sustain his burden to prove
that she acted with wrongful intent in violating the terms of the prior custody
orders. Id. at 38-42. Third, Appellant contends that the Gag Order Provision
of the Contempt Order violated her First Amendment rights. Id. at 42-43.
Our standard of review concerning a trial court’s contempt findings is
very narrow:
This Court’s review of a civil contempt order is limited to a
determination of whether the trial court abused its discretion. If
a trial court, in reaching its conclusion, overrides or misapplies the
law or exercises judgment which is manifestly unreasonable, or
reaches a conclusion that is the result of partiality, prejudice, bias
or ill will as shown by the evidence of record, then discretion is
abused.
B.A.W. v. T.L.W., 230 A.3d 402, 406 (Pa. Super. 2020) (citation omitted).
“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
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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) (citation omitted). Moreover,
“[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.” Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001)
(citation omitted).
I.
Appellant first claims that the July 16th Order was not sufficiently “clear
and unambiguous” as to the prohibited conduct for which she was held in
contempt. Appellant’s Brief at 34. She contends that the July 16th Order did
not explain “what was meant by ‘utilize the New York Orders[,]’” nor did “it
define who would be considered ‘third parties.’” Id. at 35. Appellant argues
that these alleged ambiguities did not give her specific notice that she was
“precluded from seeking [PFA] orders” based on the facts or events of June
30, 2021, that gave rise to the New York Orders. Id. at 35-36. She maintains
that she “construed” the July 16th Order to “mean that she could not present
the New York [O]rders to the police or camp personnel to prevent [Appellee]
from exercising his custodial rights” and that she “did not attach the New York
[O]rders to her” PFA petition. Id. at 35 (emphasis in original). Essentially,
Appellant admits that her PFA petition referenced the facts and events leading
up to the New York Orders, but she nevertheless contends that her
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interpretation of July 16th Order—that it only prohibited her from utilizing the
actual New York Orders, and not the facts or events that gave rise to them—
was reasonable.
Appellant believes that, because her interpretation of the order was
ostensibly reasonable, Sutch v. Roxborough Mem’l Hosp., 142 A.3d 38 (Pa.
Super. 2016), and Lachat v. Hincliffe, 769 A.2d 481 (Pa. Super. 2001),
support her claim that the trial court abused its discretion by holding her in
contempt. Appellant’s Brief at 34-35. In Sutch, this Court stated that, “[t]o
be punished for contempt, a party must not only have violated a clear 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.”
Sutch, 142 A.3d at 67 (emphasis in original), quoting Stahl v. Redcay, 897
A.2d 478, 489 (Pa. Super. 2006). Similarly, in Lachat, this Court stated that
“in order to punish a person for contempt, a ‘plausible reading’” of the
underlying order “is not enough” to sustain a contempt order because all
“inferences and ambiguities in the underlying order must be construed in favor
of the alleged contemnor.” Lachat, 769 A.2d at 490.
The trial court rejected Appellant’s argument, finding not only that the
terms of July 16th Order were sufficiently definite, clear, and specific to afford
Appellant notice of the prohibited conduct, see Trial Ct. Amended Op. at 14-
15, but also that Appellant violated her own interpretation of the July 16th
Order by specifically referencing the New York Orders in her PFA petition, see
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id. at 15. For the following reasons, we ascertain no abuse of discretion by
the trial court.
First, we note that Appellant fails to meaningfully develop her argument
that the term “third parties,” as used in the July 16th Order, is ambiguous.
Apart from baldly asserting its ambiguity, Appellant does not subsequently
attempt to explain how that term was unclear in the context of this case. In
any event, the at-issue mandate of the July 16th Order used the term “and/or”
as a disjunctive phrase, unambiguously indicating that Appellant could violate
the Order by either “utiliz[ing] the New York Orders” or by “provid[ing] them
to third parties,” where either action constituted “an attempt to prevent
[Appellee] from exercising his custody” of the children.3 Order, 7/16/21, at 1
¶ 3. As the trial court found Appellant in contempt for utilizing the New York
Orders to interfere with Appellee’s custody of the children, it is of no moment
whether the term “third parties” was ambiguous in the circumstances of this
case, as the court did not find Appellant in contempt for providing the New
York Orders to a third party.
Second, we agree with trial court that “the meaning of the term ‘utilize’
is crystal clear. It is not technical or legalistic. Rather, it has a common
dictionary definition: ‘to make use of: turn to practical use or account,’
https://merriam-webster.com/dictionary/utilize; ‘to use something,’
____________________________________________
3 The use of the conjunctive “and” was effectively redundant in the order, as
a violation of both clauses necessarily implies a violation of at least one of the
clauses.
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https://macmillandictionary.com/us/dictionary/american/utilize.” Trial Ct.
Amended Op. at 14.
Third, we also agree with the trial court that Appellant violated the clear,
unambiguous mandate of the July 16th Order by utilizing the New York Orders
to interfere with Appellee’s custody of the children. As the court explains:
There is no question that [Appellant] “use[d]” or “ma[d]e use of”
the New York Orders in her PFA Petition filed on September 29,
2021. That Petition made extensive references to the New York
Orders as a basis for entering a PFA in Pennsylvania, and it
expressly requested that “[Appellant] wishes to have a Judge[’]s
order to the Prothonotary to register the NY Order in PA.”
Trial Ct. Amended Op. at 15.
Thus, even if we accepted that Appellant’s narrow interpretation of the
July 16th Order to have only prohibited her from using the New York Orders
as opposed to the underlying facts and allegation leading to those orders, she
would still not be entitled to relief. The record simply belies her claim that
she did not utilize the orders themselves in her PFA petition, since she
specifically asked in the petition for enforcement of the New York Orders in
Pennsylvania. See PFA Petition, 9/29/21, at 3. Given that specific request,
it is immaterial that she did not attach the New York Orders to her PFA petition.
Finally, Appellant’s reliance on both Sutch and Lachat is misplaced. In
Sutch, the trial court precluded the defense “from presenting any evidence,
testimony, and/or argument regarding [the d]ecedent’s smoking history.”
Sutch, 142 A.3d at 74. However, defense counsel was not ordered to instruct
defense witnesses about the precluded evidence, and the trial court
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specifically denied the plaintiff’s request for “an explicit directive to defense
counsel to remind their witnesses immediately before they took the stand. . .
.” Id. During defense counsel’s direct examination of a witness, the witness
mentioned that the deceased was a smoker, in response to a question as to
whether he had any cardiac risk factors. Id. at 47. The trial court ultimately
held defense counsel in contempt for the witness’s answer. Id. at 61-62. This
Court found the contempt order at issue in Sutch lacked “the requisite
foundational order to support” a finding of contempt because there was no
“‘definite, clear, and specific order[,]’” as the trial court had specifically
refused to instruct defense counsel to remind defense witnesses of the
evidentiary preclusion. Id.
By contrast, in the instant case, Appellant was specifically ordered not
to utilize the New York Orders as a means to deprive Appellee of custody, and
it was Appellant, not another party or witness, who ultimately violated that
order. As discussed above, the July 16th Order was neither unclear nor
ambiguous, and Appellant was obviously aware of the order, as she
immediately filed a pro se appeal from it. Furthermore, Appellant’s excuse for
having violated the order — that she only referenced the facts underlying the
New York incident rather than the New York Orders themselves — was belied
by the record, as she specifically sought enforcement of the New York Orders
in her PFA petition. Consequently, we conclude that Sutch provides no
support for Appellant’s claim.
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Similarly, Lachat does not buttress Appellant’s argument. In that case,
the parties were engaged in a decades-long property dispute over “a thirty-
foot wide tract of land subject to a right-of-way” on Hinchcliffe’s property.
Lachat, 769 A.2d at 484. In 1986, the Lachats filed a lawsuit alleging that
“Hinchliffe was impeding their own free use of the right-of-way[.]” Id. That
litigation ended prior to trial when, in 1988, the parties “entered into a
stipulation concerning the disputed right-of-way[,]” resulting in an order
issued by the trial court stating, in pertinent part: “Work shall be done on the
right-of-way in a workmanlike manner and the roadway restored to the same
contour which previously existed; said contour shall be maintained hereafter.
Neither party hereto or their heirs and assigns shall interfere in any manner
with the other’s right to the use of said roadway.” Id. at 485. Soon thereafter,
“the Lachats subdivided their property and conveyed a portion to their
daughter, Eileen Young, and her husband, Wilbur, by deed executed July 8th
of that year. The deed in question granted the Youngs access to the right-of-
way[.]” Id. In the subsequent 12 years,
the relationship between Hinchliffe and the Lachats and Youngs
was neither friendly nor “neighborly.” Disputes occurred over
grass mowing, allegedly improper snow handling, and comments
attributed to Hinchliffe that he “owned” one side of the right-of-
way while the Lachats and Youngs “owned” the other side. In
January of 2000, Hinchliffe began parking flat-bed trailers along
the stabilized driveway, allegedly for the purpose of preventing
the Youngs and Lachats from driving on grassy areas he
maintained within the right-of-way. Hinchliffe also sent a hand-
printed note complaining about a large pine tree in the roadway,
which he wanted to have either cut down or trimmed because it
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interfered with his access to the stabilized roadway. In the note,
Hinchliffe threatened to block access along the stabilized drive.
Id. (footnotes omitted).
In March of 2000, the “Youngs filed a Petition for Contempt to enforce
[the] 1988 order[,]” and a contempt hearing was held the following month.
Lachat, 769 A.2d at 486. The court held Hinchliffe in civil contempt for
violating the stipulated, 1988 order concerning the right-of-way. Id.
Hinchliffe appealed, arguing, inter alia, that the trial court had erred in
conflating the terms “right-of-way” and “roadway” as used in the 1988 order,
and that although volitional, that his conduct could not be deemed a willful
violation of the order. Id. at 489.
This Court agreed, concluding that the record demonstrated that
“although Hinchliffe parked flatbed trailers and dumped snow within the right-
of-way, he did not park the trailers on the stabilized roadway in direct violation
of the order of May 13, 1988, nor did he place the snow in a manner that
prevented the Lachats or the Youngs from using the roadway.” Lachat, 769
A.2d at 490. Furthermore, this Court found that no “evidence of record
[demonstrated] that Hinchliffe willfully placed himself in noncompliance with
the explicit terms of the 1988 order at any time” despite his threats to do so.
Id.
There are no analogous circumstances in the present case. Appellant
was ordered not to use the New York Orders to interfere with Appellee’s
custody of the children. Despite her argument that the July 16th Order was
ambiguous as to whether she could use the alleged facts underlying the New
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York Orders regarding the June 30, 2021, incident, she specifically sought
enforcement of the New York Orders in her September 29, 2021, PFA petition,
directly violating the express terms of the July 16th Order. There were no
ambiguities in the at-issue order here that were comparable to the order
discussed in Lachat. Moreover, in Lachat, Hinchliffe’s violation of the order
was factually unproven because the other parties were able to use the
roadway.
For all the above reasons, we conclude that Appellant’s first claim is
meritless.
II.
Next, Appellant asserts that Appellee failed to sustain his burden to
prove that she acted with wrongful intent in violating the July 16th Order.
Appellant’s Brief at 38-42. She argues that the underlying order was entered
“without an evidentiary hearing,” and “without the court[’s] considering the
criminal action and protection orders entered in New York.” Id. at 39-40. She
also repeats her assertion that her PFA petition was “not based on the New
York Orders but was instead predicated on new facts supporting a claim of
child endangerment, child abuse, and medical neglect[,]” and that she
“reasonably believed that her filings were not within the scope of the prior
orders.” Id. at 41.
As noted above, a finding of civil contempt requires proof by a
preponderance of the evidence that “the contemnor acted with wrongful
intent.” P.H.D., 56 A.3d at 706 n.7. “[W]hen making a determination
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regarding whether a defendant acted with wrongful intent, the court should
use common sense and consider context, and wrongful intent can be imputed
to a defendant by virtue of the substantial certainty that his actions will violate
the court order.” Commonwealth v. Reese, 156 A.3d 1250, 1258 (Pa.
Super. 2017).
Initially, as to Appellant’s first argument, we fail to see how the absence
of a hearing prior to the July 16th Order is relevant to whether Appellant acted
with wrongful intent in violating that order, and Appellant provides no further
argument or citation to relevant authorities in support of this claim. It is clear
from the record that Appellant was aware of the order, given that she filed a
pro se appeal from it, and so we cannot infer that any lack of notice of the
order itself contributed to her violating its terms. Thus, her first argument is
meritless.
Her second claim, that the court failed to consider the New York Orders
and related criminal action against Appellee in crafting the July 16th Order, is
nonsensical, and Appellant again fails to develop this line of thought in any
meaningful way. Judge Wall undoubtedly “considered” the New York Orders
and related actions to some extent, as the July 16th Order directed Appellant
to refrain from utilizing the New York Orders to interfere with Appellee’s
custody rights. Without any further elaboration by Appellant, we conclude
that this argument is meritless.
The remainder of Appellant’s wrongful-intent claim concerns whether
Appellee failed to show that she acted unreasonably in interpreting the July
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12th and 16th Orders. The trial court rejected these arguments, reasoning as
follows:
By their very nature, [Appellant]’s withholding of the parties’ son
for two days during [Appellee]’s custody time and her references
to the New York Orders in her PFA Petition of September 29, 2021,
were “volitional.” There is no way to construe her conduct as
accidental or unintended. Further, the [c]ourt was fully satisfied
that [Appellant] acted with “wrongful intent.” The withholding of
the son occurred in the direct wake of Judge Wall’s Order of July
12, 2021, reconfirming the custody order of May 19, 2019. And
her insertion of specific references to the New York Orders in her
PFA Petition and in the ex parte hearing was clearly made with
knowledge that such conduct was contrary to Judge Wall’s Order
of July 16, 2021, prohibiting use of the New York Orders to prevent
[Appellee] from exercising his custody. Any doubt on the question
of [Appellant]’s bad faith was dispelled by her evasive and self-
contradictory testimony at trial. . . .12
12 [Appellant] argued, through her counsel, that she had not
violated Judge Wall’s Order because that Order was issued
in the present custody case but [Appellant]’s filing of a PFA
Petition commenced a new, separate case. [N.T.,] 1/20/22,
at 102; [N.T.,] 2/8/22[,] at 132.[] This argument is without
merit. Nothing in Judge Wall’s Order limits its application to
filings made in the custody case.
Trial Ct. Amended Op. at 16.
Instantly, Appellant explicitly violated the terms of the July 12th and
July 16th Orders by withholding custody of the parties’ son and by filing a PFA
petition seeking enforcement of the New York Orders, respectively. This
evidence was sufficient to show wrongful intent under the preponderance of
the evidence standard, as wrongful intent “can be imputed” where there is
“substantial certainty” that conduct “will violate the court order.” Reese, 156
A.3d at 1258. To the extent that Appellant testified that she, nevertheless,
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did not intend to violate those orders, the trial court did not find her testimony
to be credible and, as an appellate court, we afford the trial court’s credibility
determinations great deference. See Hollock v. Erie Ins. Exch., 842 A.2d
409, 414 (Pa. Super. 2004) (“It is not the role of an appellate court to pass
on the credibility of witnesses; hence we will not substitute our judgment for
that of the factfinder.”). Consequently, we ascertain no abuse of discretion in
the trial court’s finding that Appellant acted with wrongful intent in violating
the July 12th and July 16th Orders. Appellant’s second issue is meritless.
III.
Finally, Appellant claims the Gag Order Provision of the Contempt Order
constitutes a content-based, prior restraint on her First Amendment rights
that is presumptively unconstitutional and subject to strict scrutiny. Appellant
asserts that the
March 1 [G]ag [O]rder[ Provision]’s prior restraint on [Appellant]’s
speech in this case is not content-neutral because it relates to the
New York PFA and prohibits [Appellant] from “making use of the
New York proceedings for any purpose.”
The March 1 [G]ag [O]rder [Provision] makes no effort to tie the
prior restraint on [Appellant]’s speech to any possibility of harm
to the minor children.
* * *
The March 1 [G]ag [O]rder [Provision] is overly broad and
unconstitutional as a contempt sanction because it infringes on
[Appellant]’s [F]irst [A]mendment right of free speech under the
United States Constitution and Section 7 of the Pennsylvania
Constitution. The children have already testified to [Appellee]’s
violent tendencies and his assault of [Appellant] and will not be
harmed by the granting of a PFA. Preventing [Appellant] from
taking legal action to protect her children infringes on the rights
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of [Appellant] and her children to take action so they can be
protected from imminent bodily harm.
Appellant’s Brief at 42-43. In support of her argument, Appellant contrasts
the facts and circumstances of this case with those addressed by our Supreme
Court in S.B. v. S.S., 243 A.3d 90, 106 (Pa. 2020) (upholding a gag order
constricting speech about sexual abuse allegations in custody proceedings),
cert. denied, 142 S.Ct. 313 (Oct. 4, 2021).
A First Amendment challenge to a gag order presents a question of law,
“for which our standard of review is de novo and our scope of review is
plenary.” S.B., 243 A.3d at 104. In such cases, “an appellate court has an
obligation to make an independent examination of the whole record in order
to make sure that the judgment does not constitute a forbidden intrusion on
the field of free expression.” Id. (cleaned up). In reviewing First Amendment
challenges, we must consider both the nature of the at-issue speech
restriction, as well as its scope, as follows:
It is well-established that content-based restrictions on
speech are presumptively unconstitutional and are subject to the
strict scrutiny standard, which requires the government to prove
that the restrictions are narrowly tailored to serve a compelling
state interest. Reed v. Town of Gilbert, 576 U.S. 155, 163 . . .
(2015). “Government regulation of speech is content based if a
law applies to a particular speech because of the topic discussed
or the idea or message expressed.” Id.
Determining whether a particular restriction on speech is
content based or content neutral is not always a simple endeavor.
A restriction is content based if either the face of the regulation or
the purpose of the regulation is based upon the message the
speaker is conveying. Reed, 576 U.S. at 163-64. . . . See e.g.,
Barr, supra (holding that a federal statute permitting only those
robocalls that relate to the collection of government debt is clearly
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a content-based restriction on speech because the law favors
speech made for collecting government debt over political and
other speech).
To the contrary, “regulations that are unrelated to the
content of speech are subject to an intermediate level of scrutiny
because in most cases they pose a less substantial risk of excising
certain ideas or viewpoints from the public dialogue.” Turner
Broad. Sys. [v. F.C.C.], 512 U.S. [622,] 642 [(1994)] (internal
citation omitted). A content-neutral regulation of speech passes
constitutional muster if it satisfies the following four-part standard
set forth by the High Court in United States v. O'Brien, [391
U.S. 367 (1968)]: (1) the regulation was promulgated within the
constitutional power of government; (2) the regulation furthers an
important or substantial governmental interest; (3) the
government interest is unrelated to the suppression of free
expression; and (4) the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest. []O'Brien, 391 U.S. at 377. . . .
So long as the regulation of speech is not a means, subtle
or otherwise, of exercising content preference, it is not presumed
invalid. See Turner Broad. Sys., supra (deeming the
challenged statute content neutral because the face of the statute
distinguishes between speakers in the television programming
market based only on the manner in which the programmers
transmit their messages to viewers, not the content of the
messages they carry, and the purpose for which the statute was
enacted is also unrelated to content).
Restrictions on the time, place and manner of expression,
whether oral, written or symbolized by conduct, are a form of a
content-neutral regulation of speech. Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 . . . (1984). These
restrictions may make it more difficult for an individual to engage
in a desired speech-related activity by targeting, inter alia, the
means of speech or the method of communication, but they do
not target the content of the message ultimately conveyed. Time,
place, and manner restrictions are valid, provided that they: (1)
are justified without reference to the content of the regulated
speech; (2) are narrowly tailored to serve a significant
governmental interest unrelated to speech;12 and (3) leave open
ample alternative channels for communication of the information.
Id.
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12 The United States Supreme Court has clarified that “a
regulation of the time, place, or manner of protected speech
must be narrowly tailored to serve the government’s
legitimate, content-neutral interests but that it need not be
the least restrictive or least intrusive means of doing so.”
Ward v. Rock Against Racism, 491 U.S. [781,] 798 . . .
[(1989)].
The High Court has explained that “[t]he principal inquiry in
determining content neutrality, in speech cases generally and in
time, place, or manner cases in particular, is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys.” [Id.] at 791 . . .
(internal citation omitted). The government’s purpose of the
speech restriction is the controlling consideration and, if the
purpose is unrelated to the expression of content, the restriction
is deemed neutral, even though the speech restriction may have
an incidental effect on some speakers or messages, but not
others. Id.
While the precise text of the two constitutional standards
differ (i.e., the O’Brien standard employed to determine whether
a regulation of speech is content neutral and the specific standard
applicable to time, place, and manner restrictions on speech), the
High Court has clarified that the O’Brien standard “is little, if any,
different from the standard applied to time, place, or manner
restrictions.” Community for Creative Non-Violence, 468 U.S.
at 298. . . .
S.B., 243 A.3d at 104–06.
Thus, under the standards discussed in S.B., our first inquiry is to
determine whether the speech restriction involved here is a content-neutral
restriction on the time, place, and manner of speech, or whether the restraint
on speech is intended to enforce a disagreement with the content of the
restricted speech. Here, the trial court found the Gag Order Provision was
necessary because:
[Appellant] repeatedly advanced unreasonably narrow
constructions of Judge Wall’s Order of July 16, 2021, in an attempt
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to justify her utilization of the New York Orders in filing and
advancing her PFA Petition of September 29, 2021. Further, the
New York Orders were issued against [Appellant] without an
opportunity to present evidence, and every subsequent
independent investigation and . . . hearing on the allegations that
led to the issuance of the New York Orders found the allegations
to be unfounded or unproved. In view of [Appellant]’s repeated
misuse of the New York Orders and her contrived efforts to narrow
the scope of Judge Wall’s Order restricting her use of the New York
Orders, the [c]ourt prohibited [her] from making any use of the
New York Orders without prior judicial authorization.
The [c]ourt plainly had authority to issue such a prohibition.
“[A] pattern of groundless and vexatious litigation will justify an
order prohibiting further filings without permission of the court.”
Coulter v. Lindsay, 159 A.3d 947, 956 (Pa. Super. 2017)
(quoting Chipps v. U.S.D.C. for the M.D. of Pa., 882 F.2d 72,
73 (3d Cir. 1989)). Pennsylvania Appellate Courts have issued
injunctions against repeated vexatious filings by a litigant. See,
e.g., Bolick v. Commonwealth, 69 A.3d 1267, 1269 (Pa. Super.
2013) (issuing injunction where party “has long abused the
judicial process with repeated filings that raise issues decided
previously”); Winpenny v. Winpenny, 775 A.2d 815, 818 (Pa.
Cmwlth. 2001).
The [c]ourt’s exercise of this authority was fully supported
by the conduct of [Appellant] in her misuse of the New York
Orders. She has repeatedly filed PFA Petitions against [Appellee]
on the basis of the New York Orders and the underlying incident
in New York, knowing that the ex parte nature of the [c]ourt’s
initial consideration of the Petitions would enable her to obtain
Temporary PFA Orders without full disclosure of the relevant facts.
None of these PFA Petitions have resulted in final orders of
protection. She has harassed [Appellee] through her serial PFA
filings and her repeated complaints to child welfare agencies,
which have been determined to be unfounded. Two judges of this
[c]ourt — Judge Daniele and the undersigned — have heard
[Appellant]’s testimony about the alleged assault in New York and
have viewed the videos that she claimed to corroborate her
testimony, and both judges have been unpersuaded. The New
York proceedings against [Appellee] have now been dismissed.
Most significantly, [Appellant] was previously subjected, by
Judge Wall’s Order of July 16, 2021, to a narrower prohibition,
restricting her from utilizing the New York Orders in “an attempt
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to prevent [Appellee] from exercising his custody.” Instead of
complying with that restriction, she blatantly violated it in the
filing of her PFA Petition on September 29, 2021, and her
testimony in the ex parte hearing held on that Petition. When
called to account at the trial of this matter, she engaged in a
frivolously narrow reading of Judge Wall’s Order in an attempt to
excuse her violation. Where [Appellant] has shown that she
cannot be counted upon to abide by a narrow prohibition, a
broader restriction is necessary to prevent her from evading it
through similar prevarication.
The [c]ourt recognizes that its injunction is not limited to
judicial filings but also prohibits [Appellant] from making other
use of the New York proceedings, such as referring to them in any
submission to a government office or child welfare agency. This
expanded scope was necessary in view of [Appellant]’s prior use
of the New York proceedings in her complaints to [NYOCFS], which
were ultimately determined to be unfounded. Injunctions to
prevent frivolous and harassing filings in a court have also been
extended in a similar fashion. See, e.g., United States v. Kaun,
827 F.2d 1144 (7th Cir. 1987) (injunction against tax protestor
from disseminating false and fraudulent method for avoiding
payment of federal taxes).
Trial Ct. Amended Op. at 18-20 (some citations omitted).
The trial court further stated:
Pennsylvania Courts do not appear to have addressed the
free speech implications of an injunction against frivolous filings,
but federal courts have repeatedly upheld such injunctions, when
properly supported, against First Amendment challenges. “Just
as false statements are not immunized by the First Amendment
right to freedom of speech, baseless litigation is not immunized
by the First Amendment right to petition.” Bill Johnson’s
Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983) (citations
omitted); see, e.g., Riccard v. Prudential Ins. Co., 307 F.3d
1277, 1298 (11th Cir. 2002) (“A vexatious litigant does not have
a First Amendment right to abuse official processes with baseless
filings in order to harass someone to the point of distraction or
capitulation.”); Filipas v. Lemons, 835 F.2d 1145, 1146 (6th Cir.
1987); []Kaun, 827 F.2d [at] 1153-54. . . . No greater protection
is provided by Article I, section 7, of the Pennsylvania
Constitution, as its free speech provision is generally coextensive
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with that of the First Amendment. See S.B.[], 243 A.3d at 112-
13. . . .
Trial Ct. Amended Op. at 20-21.
Here, the trial court’s express purpose for issuing the Gag Order
Provision was to prevent continued, vexatious litigation by Appellant that was
interfering with Appellee’s custody rights. Appellant makes no effort in her
argument to address this purpose and, instead, baldly declares that the
restriction was not content-neutral, contending that this case is
distinguishable from S.B. We disagree with Appellant.
In S.B., S.B. and S.S. were also engaged in a protracted custody dispute
over their child, F.H.B. S.B., 243 A.3d at 94. S.B. adopted F.H.B. in 2007,
and raised the child alone from 2008 until 2012 after his first wife died. Id.
at 95. He married S.S. in 2012, and S.S. adopted F.H.B. in 2013. Id.
However, the couple soon separated, and a custody battle began. Id. In
2015, S.S. filed a PFA petition against S.B., alleging that S.B. had sexually
abused F.H.B. Id. After entering a temporary PFA order against S.B., the
trial court conducted a 5-day hearing, ultimately concluding that the sexual
abuse allegations were not credible. S.S. filed another PFA petition against
S.B. in 2016, again alleging sexual abuse of F.H.B., but that PFA petition was
also denied. Id. After a custody trial was held later that year, S.B. was
granted sole legal and physical custody of F.H.B. Id.
While S.S.’s appeal from that decision was still pending resolution, S.S.’s
attorney “held a press conference on the online video-sharing platform,
YouTube, expressing [S.S.]’s fervent disagreement with the trial court’s
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findings and orders in the custody matter.” Id. at 96. During the press
conference, the attorney “identified [S.S.] by name and … included a link
providing access to a reproduction of F.H.B.’s in-court testimony and forensic
interview, during which Child sets forth detailed allegations of [S.B.’s] sexual
abuse, which the trial court had deemed unfounded.” Id. Although F.H.B.
was not specifically identified by name, the child “obviously could have been
identified by virtue of the disclosure of [S.S.]’s identity.” Id.
S.B. filed a motion for sanctions, which was denied because there were
no standing orders preventing the parties from speaking publicly about the
custody dispute. However, the trial court issued a gag order, directing S.S.
and her attorneys not to “speak publicly or communicate about this case
including, but not limited to, print and broadcast media, on-line or web-based
communications, or inviting the public to view existing on-line or web-based
publications.” Id. at 97. The gag order also restricted S.S. and her attorneys
from directing or encouraging third parties to do the same. Id. The gag order
permitted S.S. and her attorneys to provide public testimony before state or
federal legislatures regarding sexual abuse, so long as S.S., S.B., and F.H.B.
were not identified. Id. S.S. and her attorney were also instructed to remove
all publicly-posted information about the case from YouTube and other
internet forums. Id. The trial court justified the gag order because “the right
of [F.H.B.] to be free from undue scrutiny, ridicule, or scorn, outweighs the
rights of [S.S.] and her attorney to engage in thoughtless, toxic, misleading
and vengeful discourse about this case.” Id. at 98 (internal quotation marks
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omitted). S.S. appealed, and this Court affirmed. See S.B. v. S.S., 201 A.3d
774 (Pa. Super. 2018).
The Pennsylvania Supreme Court granted allowance of appeal and
ultimately upheld the trial court’s gag order. In its analysis of S.S.’s free
speech claim, the S.B. Court first rejected her contention that the gag order
constituted “a total ban on all speech relating to the topic of [the] custody
proceeding,” as that “contention [was] unsupported by the order’s plain text
and its clearly articulated purpose.” Id. at 106. To the contrary, “while the
gag order precludes [the a]ppellants from speaking publicly about ‘this case,’
when read in context, the order affords [the a]ppellants ample opportunity to
disseminate all of their thoughts into the marketplace of ideas without
restriction on the content of their message.” Id. at 107. The Court further
found that:
The gag order also does not discriminate against speech relating
to the trial court’s actual entry of the gag order itself or speech
criticizing the trial court’s judgment in issuing that order. As
noted, once [the a]ppellants remove from the public domain the
enumerated information found to be harmful to [the child], they
are free to criticize the trial court’s decision, assuming they do so
in a manner that does not disclose [the c]hild’s identity. Hence,
the gag order places no restraint on [the a]ppellants’ message
regarding the governmental actions that were taken in connection
with [the] custody case.
Id. Consequently, the S.B. Court held that the gag order was content neutral
and, therefore, not subject to strict scrutiny. Id. As such, the Court applied
“the intermediate standard of constitutional scrutiny set forth in . . . O'Brien,
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. . . as well as the similar federal precedent applicable to restrictions placed
on the time, place, and manner of speech.” Id.
Analyzing the matter under the four O’Brien factors, the S.B. Court
concluded that the gag order was narrowly tailored to furthering the important
government interest of protecting F.H.B. Id. at 107-11. Under the first factor,
the S.B. Court simply noted that there was no dispute that the trial court had
the constitutional power to act in the interest of the child in the context of a
custody dispute “aside from its effect on free speech rights[.]” Id. at 107.
Under the second factor, the Court considered “the speech restriction
further[ed] an important or substantial governmental interest.” Id. at 108.
The Court held that “a restriction on the manner of parental speech in a
custody case furthers an important governmental interest where there is a
substantial likelihood that the restrained speech has harmed or will imminently
harm the child.” Id. at 110.
The S.B. Court next considered whether the justification for the gag
order was related to the content of the restricted speech, concluding that it
was not. Id. Finally, the Court analyzed whether the speech restriction was
narrowly tailored to the government interest at stake, concluding that it was,
since the appellants were still permitted to express their opinions in public
forums so long as the identity of the child was protected, and because the gag
order did not impose any restrictions on the press. Id. at 110-11.
Instantly, Appellant first argues, with scant discussion, that the Gag
Order Provision is a content-based restriction on her speech. We disagree.
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As stated in the trial court’s opinion, and as is suggested by the text of the
provision itself, Appellant is not restricted from making any reference to the
New York Orders and related events in any and all circumstances, nor does
the Gag Order Provision restrict her speech with respect to any point of view
regarding those matters. Instead, the Gag Order Provision only restricts her
from making use of the New York incident and related orders in court filings,
and/or before other government agencies, such as child welfare agencies; that
is, in any manner that could conceivably instigate further litigation over that
incident. Indeed, unlike the gag order in S.B., the Gag Order Provision here
does not restrict Appellant from publicly commenting on the New York Orders
and related incident at all and, therefore, constitutes a narrower restriction
than the gag order in S.B. Thus, as was the case in S.B., the Gag Order
Provision here is also a time, place, or manner restriction that is not subject
to strict scrutiny and, therefore, the O’Brien test applies. Appellant’s claim
the Gag Order Provision is not content neutral is meritless.
Appellant’s discussion of this issue only vaguely references the O’Brien
test in the brief context of her citation to S.B. Nevertheless, we will address
the Gag Order Provision under the O’Brien test out of an abundance of
caution, in recognition of the importance of the First Amendment issues at
stake.
We first consider whether the “regulation was promulgated within the
constitutional power of government[.]” O'Brien, 391 U.S. at 377. As was
the case in S.B., we ascertain no reason why the trial court would lack the
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constitutional authority to issue an order seeking to prevent harassing,
vexatious litigation by a party in the context of an ongoing custody dispute,
apart from the First Amendment issue under consideration. In any event,
Appellant makes no such argument in her brief.
Next, under the second O’Brien factor, we contemplate whether “the
regulation furthers an important or substantial governmental interest[.]”
O'Brien, 391 U.S. at 377. Appellant argues that the trial court did not cite
the protection of the parties’ children to justify the Gag Order Provision, as
had been recognized in S.B. as an important government interest at stake in
that case. Appellant’s Brief at 43. While Appellant is correct that the trial
court did not explicitly cite the children’s safety or wellbeing to justify the Gag
Order Provision, there is nothing in the S.B. decision that limits such
injunctions in custody disputes solely to those that serve the important
government interests involving the protection of children.4
As cited by the trial court, supra, both Pennsylvania and federal courts
have recognized the validity of injunctions designed to curb vexatious
litigation. In addition to those authorities, we note that the United States
Supreme Court has recognized that a “legitimate and important state interest”
exists “in preventing . . . fraud, undue influence, intimidation, overreaching,
and other forms of ‘vexatious conduct[,]’” in the context of a First Amendment
____________________________________________
4The trial court maintains that the Gag Order Provision was “arguably in the
best interests of the children,” but acknowledges that it did not make “an
express finding to that effect.” Trial Ct. Amended Op. at 20 n.14.
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challenge to restrictions on solicitation by lawyers. Ohralik v. Ohio State B.
Ass'n, 436 U.S. 447, 462 (1978). In Procup v. Strickland, 792 F.2d 1069
(11th Cir. 1986), the Eleventh Circuit considered an injunction against a state
prisoner who had engaged in “ridiculously extensive” and “frivolous” litigation.
Id. at 1070. Although the Procup Court rejected a complete ban on pro se
lawsuits by the prisoner as unconstitutional, and remanded for the imposition
of alternative sanctions, it recognized that there “should be little doubt that
the district court has the jurisdiction to protect itself against the abuses that
litigants like Procup visit upon it. Federal courts have both the inherent power
and the constitutional obligation to protect their jurisdiction from conduct
which impairs their ability to carry out” judicial functions. Id. at 1073.
Here, we recognize the trial court acted pursuant to a substantial and
important government interest to prevent vexatious litigation by Appellant,
particularly where her repetitive litigation began to exhaust the limited time
and resources of the court over previously-decided matters, while
simultaneously impeding Appellee’s custody rights to the children by abuse of
the temporary PFA process. Appellant had multiple opportunities to litigate
the accusations related to the New York incident in both New York and
Pennsylvania, all of which were ultimately unsuccessful. The trial court
therefore had a substantial interest in curtailing unfettered, repetitive
litigation over the same subject matter.
Under the third O’Brien factor, we consider whether the justification for
the gag order was related to the content of the restricted speech. We conclude
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that it was not. Appellant is not prohibited by the Gag Order Provision from
speaking publicly about the New York Orders, or from complaining about the
adverse judgments against her claims of abuse arising out of the New York
incident. Appellant is only conditionally prohibited from repetitively
relitigating those matters in the courts or before government agencies without
leave of court to do so. This restriction does not target the content of her
speech, but is instead designed to limit the manner of her expression in the
narrow context of litigation and other government agency filings.
Finally, under the fourth O’Brien factor, we must consider whether the
Gag Order Provision was narrowly tailored to prevent vexatious litigation by
Appellant. The Gag Order Provision is narrowly tailored to limit only legal and
governmental filings involving the previously-litigated incident and orders
from New York, unlike the order in S.B., which had prevented speech in most
public settings about that case. Nothing in the Gag Order Provision prevents
Appellant from speaking to those matters publicly, insofar as such speech
could not fairly be deemed to be an attempt to prompt litigation or otherwise
interfere with Appellee’s custody. Furthermore, nothing in the Gag Order
Provision prevents Appellant from seeking relief based on new matters or
circumstances that might arise regarding the custody of the children or
Appellant’s own safety. Moreover, Appellant is even permitted by the Gag
Order Provision to raise matters concerning the New York Orders and related
proceedings by first seeking leave of court do so. Under these circumstances,
we conclude that the Gag Order Provision was narrowly tailored to address
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the important government interest of preventing further vexatious litigation
by Appellant regarding the New York Orders and related incident that was
impeding Appellee’s custody of the children.
Accordingly, under the O’Brien test, Appellant’s First Amendment rights
were not infringed. Consequently, her third claim also lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2022
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