J-A26022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHAD BATTERMAN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : SILVIA SANTO : : Appellee : No. 1371 EDA 2022
Appeal from the Order Entered April 27, 2022 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2019-06877
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM PER CURIAM: FILED JANUARY 9, 2023
Appellant, Chad Batterman (“Father”), appeals from the order entered
in the Montgomery County Court of Common Pleas on April 27, 2022, which
found Father in contempt of the court’s prior custody orders and did not find
Mother in contempt of the court’s orders. We affirm.
The trial court set forth the factual and procedural history of this case
as follows:
On July 16, 2021, after a five-day custody trial spanning the course of months, the Honorable Melissa S. Sterling issued a detailed and expansive custody order (the “July 16, 2021 Order”), granting Mother sole legal custody and primary physical custody of the minor children, C.B. ([born October 2015]) and D.B. ([born October 2017]) (hereinafter the “Children”), subject to Father’s periods of partial custody. This appeal results from an April 27, 2022 Order finding Father in contempt and imposing sanctions. ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A26022-22
The relevant factual background follows. Judge Sterling’s July 16, 2021 Order provides that Mother has primary physical custody of the [C]hildren and Father has partial physical custody. Father’s custody is every other weekend (from Friday at 5:00 p.m. until Monday at 8:00 a.m.) and every Tuesday from 8:00 a.m. until Wednesday at 7:00 p.m. The exchanges take place at the Abington Township Police Department.
In the weeks leading up to Wednesday April 20, 2022, Father filed three petitions requesting emergency court intervention for Mother to relinquish custodial days so that Father could have additional days to celebrate Passover (over and above the holiday schedule set forth in the July 16, 2021 Order which includes days for Passover). Father acknowledged that the July 16, 2021 Order would permit Father to have custody of the Children Tuesday evening of that week only (in addition to the following weekend) and he was requesting emergency relief permitting additional days.
The [c]ourt denied each of Father’s three petitions—the final such denial was by an April 19, 2022 Order that included the following language: “The parties shall strictly comply with the holiday schedule set forth in Judge Sterling’s July 16, 2021 Order.”
Mother filed an emergency petition Thursday April 21, 2022 alleging that Father had failed to return the [C]hildren on Wednesday April 20, 2022 as required by the July 16, 2021 Order (and this [c]ourt’s April 19, 2022 Order). Father filed a response that same day providing his explanation for why he failed to return the children (essentially providing that there was some confusion at the police station exchange point and that he was otherwise unilaterally using makeup time owed to him). Father subsequently filed an emergency petition requesting that Mother’s alleged boyfriend not appear for exchanges (Mother later testified that she does not have a boyfriend and that no one was with her for the Wednesday evening exchange).
Mother filed an amended emergency petition Friday April 22, 2022 averring that Father was still retaining custody of the
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children in violation of the July 16, 2021 Order. That is, Father had refused to exchange the Children on Thursday night in addition to Wednesday night.
The [c]ourt issued an April 22, 2022 Order scheduling a hearing and providing the following language: “Pending further order of the [c]ourt, Mother is granted sole physical custody of the parties’ two children. Father shall immediately release custody of the Children to Mother if they are in his custody.” [(Order, 4/22/22).] The April 22, 2022 Order further authorized law enforcement to take custody of the Children and return them to Mother.
On Wednesday, April 27, 2022, the [c]ourt presided over a hearing which was scheduled on an emergency basis. At the hearing, the [c]ourt heard testimony from Mother and Father and reviewed exhibits submitted by the parties.
Mother testified that in the hours leading up to the 7:00 p.m. exchange time on Wednesday, April 20th, Father sent a series of Our Family Wizard messages confirming that he “will not be at tonight’s custody exchange at 7:00 p.m. [and that] [t]he next exchange will take place on Monday, April 25th.” (N.T. Hearing, 4/27/22, at 13-15). Father’s stated reasons to Mother for unilaterally assuming extra custodial days was based on the Passover holiday (Father wanted additional days for celebrations) and alleged custodial makeup time that Father was choosing to take. (Id.) Mother nevertheless went to the Abington Police Station at 7:00 p.m. but Father was not there with the Children. (Id.)
Over the next several hours, there was communications between the parties and both parties ultimately went to the police station between 9:30 and 10:30 p.m. However, Father ultimately “denied the exchange,” “would not hand over the children” and left the police station. (Id. at 18- 25). Mother also testified that Father did not return the Children on Thursday, April 21, 2022. (Id. at 27-28). Mother did not receive the Children until Monday, April 25, 2022 despite the April 21, 2022 Order directing that Father “immediately release custody of the Children to Mother”. (Id. at 117).
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Father testified that, indeed, he did not return the Children on Wednesday or Thursday of the week in question—despite the [c]ourt’s Orders–for “multiple reasons” including that (i) he was protecting the Children from the police presence at the Wednesday, April 20, 2022 exchange point, (ii) Mother’s boyfriend had threatened him at the police station exchange point prompting him to leave with the Children, (iii) Mother had previously agreed for Father to have additional days for the 2022 Passover holiday, (iv) the July 16, 2022 Order is somehow unclear with respect to the 2022 Passover schedule and (v) Father was otherwise entitled to makeup time anyway and was merely exercising his rights in that regard. (Id. at 48-128).
The [c]ourt found Father’s explanations for failing to comply with the July 16, 2021 Order to be calculated and incredible. Essentially, Father provided a laundry list of excuses for why he felt justified in violating court orders and withholding custody of the Children for the evenings of Wednesday, April 21, 2022 and Thursday, April 22, 2022. Accordingly, the [c]ourt determined that Father was in contempt of [the] July 16, 2021 Order and this [c]ourt’s April 19, 2022 Order. Of note, Father has been found in contempt of numerous custody orders both in Montgomery County and Philadelphia.
(Trial Court Opinion, 8/8/22, at 1-4) (citation formatting provided; some
emphasis omitted). On April 27, 2022, the court issued an order setting forth
the following:
1. Mother’s Petitions styled Emergency Petition for Contempt of Custody and Special Relief To Return Children to Mother and Sanction (Seq. 466) and Amended Emergency Petition for Contempt of Custody and Special Relief To Return Children to Mother and Sanction (Seq. 471) are GRANTED to the extent set forth herein.
2. Father is in CONTEMPT of the July 16, 2021 Custody Order of the Honorable Melissa S. Sterling and the April 19, 2022 Order of the Undersigned.
3. Father is hereby sanctioned as follows:
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a) Subject to Paragraph 3(b) herein, Father is sentenced to imprisonment for 15 days in the Montgomery County Correctional Facility to begin June 27, 2022—60 days from today’s date. [Father] shall report to the Montgomery County Correctional Facility at 9:00 a.m. on June 27, 2022 to begin serving the sentence. Father shall bring a copy of this Court Order with him to the prison. This sentence shall be served in the Montgomery County Correctional Facility itself and not by way of electronic monitoring or house arrest.1
b) To avoid the sanction of incarceration set forth in Paragraph 3(a), the [c]ourt provides the following two alternate conditions: Father may either (i) make payment to the Montgomery Child Advocacy Project (“MCAP”) in the amount of $1,000 within 60 days of this Order, (i.e., by June 27, 2022),2 or (ii) complete 60 hours of community service by June 27, 2022. The community service must be unpaid, on behalf of a non-profit entity and designed to benefit the public. Prior to beginning any community service hereunder, Father shall notify Chambers for pre-approval. Father shall ensure beforehand that his community service supervisor is willing to confirm the completed hours in writing and verbally with Chambers.
c) If Father makes payment in full or completes the community service set forth in Paragraph 3(b), the incarceration provided in Paragraph 3(a) shall be voided.3
d) Father is placed on probation for a period of six (6) months to date from today.4
e) Conditions of Father’s probation include the following: (i) Father must strictly comply with Judge Sterling’s July 16, 2021 Custody Order and all other Orders entered in connection with this custody matter (i.e., any Order filed in connection with Montgomery County case number 2019-06877), and (ii) Father must refrain from filing any frivolous petitions.
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f) If the [c]ourt becomes on notice that Father may have violated this probation, the [c]ourt shall schedule Criminal Contempt proceedings, providing Father with the “the essential procedural safeguards” as contemplated by Pennsylvania case law.5 Any such Criminal Contempt proceedings may be in addition to Civil Contempt proceedings if Father is alleged to have violated a [c]ourt Order.
g) Father shall relinquish custody time of the children by way of “makeup time” to Mother. The [c]ourt understands that, as a result of the [c]ourt’s April 21, 2022 Order granting her temporary sole physical custody, Mother has had custody of the children for a period of time that otherwise would have been with Father. The [c]ourt concludes that this time with Mother constitutes the entirety of the “makeup time” for which she is entitled.6
__________________________________________ 1 The dominant purpose of the sanctions set
forth herein, including the sanction of imprisonment, is to prospectively coerce Father into complying with future [c]ourt Orders— which is in the best interest of the children. See Goodman v. Goodman, 556 A.2d 1379 (Pa.Super. 1989), appeal denied, 523 Pa. 642, 565 A.2d 1167 (1989). Father has demonstrated a settled purpose of assigning his own personal interpretation to Orders that contradict their plain language, and has ignored numerous warnings that future violations may result in sanctions. The [c]ourt hopes that these sanctions will convince Father to comply with existing and future Orders.
2 Pursuant to 23 Pa.C.S.[A.] § 5323(g), the [c]ourt may fine a defendant up to $500 per civil contempt in connection with a custody order. The [c]ourt finds that Father is in contempt based on his refusal to return the children to Mother on April 20, 2022 and April 21, 2022. The [c]ourt is hereby fining Father $500 for each of these two specific dates that Father was in
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contempt. The [c]ourt finds that Father has the resources to pay this fine based on its findings following the March 11, 2022 hearing with respect to one of Father’s In Forma Pauperis petitions. This $1,000 fine is in addition to the $500 fine previously imposed on Father pursuant to the [u]ndersigned’s March 9, 2022 Order finding Father in contempt.
3The alternative conditions of a $ 1,000 fine or 60 hours of community service are to be considered purge conditions pursuant to 23 Pa.C.S.[A.] § 5323(g)(2).
4 This probationary sentence is imposed pursuant to 23 Pa.C.S.[A.] § 5323(g)(1)(iii).
5 See Ingebrethsen v. Ingebrethsen, 661 A.2d 403 (Pa.Super. 1995).
6 In filings, and during today’s hearing, Father repeatedly referenced custodial “makeup time” that he asserts Mother owes to him and which he has used to justify making unilateral decisions regarding custody transfers. To the contrary, however, the October 21, 2021 Order of the Honorable Jeffrey S. Saltz references makeup time that Father owes Mother. There is nothing in the historic record of this case to confirm that Mother owes Father any makeup time. In an effort to ensure clarity, the [c]ourt hereby provides, following testimony at today’s hearing and a review of the Our Family Wizard records introduced into evidence, that Mother does not owe Father any makeup time. Father’s future invocation of alleged “makeup time” to deprive Mother of custody shall be considered contemptuous.
4. Mother is found NOT IN CONTEMPT of any custody Order.
5. Father’s petition styled Emergency Motion for Civil Disobedience of the July 16, 2021 Order and Special Relief Prohibitiing [sic] Mother’s Boyfriend Beleived [sic] To Be
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Idendtiffied [sic] As “Ricky” From Being Around the Parties’ Children as Well" [sic] As From All Custody Exchanges (Seq. 469) is DENIED.
6. The provision in the [c]ourt’s April 21, 2022 Order granting Mother sole physical custody of the children until further Order of Court is terminated. The July 16, 2021 Custody Order of the Honorable Melissa S. Sterling, as amended, shall again be in full force and effect.
7. The parties have agreed that any significant others shall stay in the car during custody transfers at the police station.
8. All other requests for relief by Father and Mother, in their written petitions and as clarified at the hearing, are DENIED.
9. This Order resolves all outstanding matters.
(Order, 4/27/22, at ¶¶ 2-4) (emphases omitted, citation formatting provided).
On May 5, 2022, Father filed a timely notice of appeal together with a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925.
Father raises the following issues on appeal.
1. The Judge erred as a matter of law by finding Plaintiff in contempt.
2. The Judge erred as a matter of law by granting Defendant’s Emergency Petition filed April 21, 2022 (Seq. #466) and Defendant’s Amended Emergency Petition for Contempt of Custody and Special Relief filed on April 22, 2022 (Seq. #471).
3. The Judge erred as a matter of law by imposing mandatory jail time if monetary sanctions were not paid or 60 hours of community service was not completed by June 27, 2022.
4. The Judge erred as a matter of law by not holding a hearing to review the reasonableness of the sanctions and Father’s ability to pay monetary fine.
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5. The Judge erred as a matter of law by not placing Father on a payment plan to pay any monetary sanctions.
6. The Judge erred as a matter of law by ordering him to be on probation.
7. The Judge erred as a matter of law by fining him more than the allowed amount pursuant to the rules or 23 Pa.C.S. 5323(g).
8. The Judge erred as a matter of law by failing to find Defendant in contempt of the July 16, 2021 Order, April 5, 2022 Order and April 19, 2022 Order.
9. The Judge erred as a matter of law by denying Plaintiff’s Emergency Motion filed on April 22, 2022 (Seq. #469).
10. The Judge erred as a matter of law by denying Plaintiff the right to have his witnesses testify at the April 27, 2022 hearing.
11. The Judge erred as a matter of law by denying Plaintiff the right to show the Court Plaintiff’s video exhibits as well as to submit his video exhibits into the record at the April 27, 2022 hearing.
12. The Judge erred as a matter of law by modifying/amending/altering and/or clarifying the July 16, 2021 Custody Order without prior notice and where there was no pending Petition to Modify Custody heard at the hearing.
13. The Judge erred as a matter of law by modifying/amending/altering and/or clarifying the July 16, 2021 Custody Order by putting in its April 27, 2022 Order an amendment NOT agreed to by the parties.
14. The Judge erred as a matter of law by providing Mother makeup time with the parties’ children.
15. The Judge erred as a matter of law by failing to provide Father make up time with the parties’ children.
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16. The Judge erred as a matter of law by failing to recuse himself from the case.
17. Appellant reserves the right to file an amended concise statement.
(Father’s Brief at 1-3).1
Our scope and standard of review are well settled. “When considering
an appeal from an [o]rder holding a party in contempt for failure to comply
with a court [o]rder, our scope of review is narrow: we will reverse only upon
a showing the court abused its discretion.” Harcar v. Harcar, 982 A.2d 1230,
1234 (Pa.Super. 2009) (quoting Hopkins v. Byes, 954 A.2d 654, 655-56
(Pa.Super. 2008)). Additionally, we must consider that:
Each 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 failing into disrepute. When reviewing an appeal from a contempt order, the appellate court must place great reliance upon the discretion of the trial judge.
Habjan v. Habjan, 73 A.3d 630, 637 (Pa.Super. 2013) (quoting
Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa.Super. 2002)).
The general rule in proceedings for civil contempt is that “the burden of
proof rests with the complaining party to demonstrate, by a preponderance of
the evidence, that the defendant is in noncompliance with a court order.” Id.
(quoting Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa.Super. 2001)).
To sustain a finding of civil contempt, the complainant must ____________________________________________
1 We reproduce Father’s issues verbatim.
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prove certain distinct elements: (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.
Id. (quoting Stahl v. Redcay, 897 A.2d 478, 486 (Pa.Super. 2006), appeal
denied, 591 Pa. 704, 918 A.2d 747 (2007)).
After finding a party in contempt for failure to comply with a custody
order, the party may be punished by one or more of the following:
(i) Imprisonment for a period of not more than six months.
(ii) A fine of not more than $500.
(iii) Probation for a period of not more than six months.
(iv) An order for nonrenewal, suspension or denial of operating privilege under section 4355 (relating to denial or suspension of licenses).
(v) Counsel fees and costs.
23 Pa.C.S.A. § 5323(g)(1)(i)-(v). “The purpose of civil contempt is to compel
performance of lawful orders, and in some instances, to compensate the
complainant for the loss sustained. When contempt is civil, a court must
impose conditions on the sentence so as to permit the contemnor to purge
himself.” Gunther v. Bolus, 853 A.2d 1014, 1018 (Pa.Super. 2004), appeal
denied, 578 Pa. 709, 853 A.2d 362 (2004) (citations and internal quotation
marks omitted).
Furthermore, “[t]he admission or exclusion of evidence...is within the
sound discretion of the trial court.” In re K.C.F., 928 A.2d 1046, 1050
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(Pa.Super. 2007), appeal denied, 594 Pa. 705, 936 A.2d 41 (2007) (quoting
McClain v. Welker, 761 A.2d 155, 156 (Pa.Super. 2000)). “An abuse of
discretion is not merely an error of judgment; if, in reaching a conclusion, the
court overrides or misapplies the law, or the judgment exercised is shown by
the record to be either manifestly unreasonable or the product of partiality,
prejudice, bias or ill will, discretion has been abused.” A.J.B. v. M.P.B., 945
A.2d 744, 749 (Pa.Super. 2008) (quoting Bulgarelli v. Bulgarelli, 934 A.2d
107, 111 (Pa.Super. 2007)).
Finally, we review a trial court’s decision to deny a motion to recuse for
an abuse of discretion. In re A.D., 93 A.3d 888, 892 (Pa.Super. 2014). “We
recognize that our trial judges are ‘honorable, fair and competent,’ and
although we employ an abuse of discretion standard, we do so recognizing
that the judge himself is best qualified to gauge his ability to preside
impartially.” Id. (citation omitted). “It is the burden of the party requesting
recusal to produce evidence establishing bias, prejudice or unfairness which
raises a substantial doubt as to the jurist’s ability to preside impartially….”
Vargo v. Schwartz, 940 A.2d 459, 471 (Pa.Super. 2007) (quoting In re
S.H., 879 A.2d 802, 808 (Pa.Super. 2005), appeal denied, 586 Pa. 751, 892
A.2d 824 (2005)).
After a thorough review of the certified record, the parties’ briefs, and
the relevant law, we conclude that the record supports the trial court’s
determination. See In re A.D., supra; Harcar, supra; In re K.C.F., supra.
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Consequently, we affirm the order finding Father in contempt and declining to
find Mother in contempt for the reasons stated in the opinion that the
Honorable Henry S. Hilles, III, entered on August 8, 2022.
Specifically, Judge Hilles explained that the trial court did not err in
finding Father in contempt for failing to comply with the court’s orders. The
court explained that Father’s petitions to modify the custody schedule over
the Passover holiday were denied, the final denial by order issued April 19,
2022, which specifically stated that the parties must “strictly comply with the
holiday schedule” set forth in the July 16, 2021 custody order. (Order,
4/19/22). The court observed that it did not err when it later found Father in
contempt of court after Father ignored the court’s clear and unambiguous
orders and kept the Children for the evenings of April 20th and 21st. (See Trial
Court Opinion at 8-10).
Additionally, Judge Hilles explained that the court’s sanctions for
Father’s contemptuous behavior were appropriate. The court noted that
Father has been repeatedly warned about his contemptuous actions in
disobeying court orders, but his behavior has not changed. It explained that
the purpose of these sanctions was to coerce Father into complying with future
court orders, which is in the best interest of Children. (Id. at 10-12).
Judge Hilles explained that the trial court did not err in not finding
Mother in contempt. Specifically, the court noted that the testimony from the
hearing did not support a conclusion that Mother was in contempt of any order.
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Rather, the evidence supported Mother’s position that she was trying to work
within and comply with the applicable custody orders. (Id. at 12-13).
Concerning Father’s claims that the court erred in denying his petition
to prohibit Mother’s boyfriend from being around Children and at custody
exchanges, Judge Hilles explained that Mother credibly testified that she does
not have a boyfriend, nor did she ever bring one to custody exchanges. (Id.
at 13). The court further stated that it did not err by addressing this issue
and including the parties’ agreed upon language—that significant others shall
remain in the car during custody exchanges—in its April 27, 2022 order.
Additionally, the court explained that this provision did not modify custody
and was agreed to by Father. (Id. at 16-17).
With respect to Father’s claims concerning the admissibility of witness
testimony and audio recordings at the hearing, Judge Hilles explained that the
trial court did not abuse its discretion in concluding that the recordings were
irrelevant. The court noted that the offered testimony of Father’s mother was
hearsay and was otherwise not relevant. The court also found that Father’s
girlfriend’s offered testimony—that Father had not received the court’s April
22, 2022 order—was not relevant because Father was not being considered
for contempt of that order. (Id. at 14-16).
Judge Hilles noted that the court did not err when it denied Father’s
claims that he was entitled to makeup time. Specifically, the court explained
that its finding concerning makeup time was issued as part of the contempt
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proceeding to prevent Father from continuing to violate the July 16, 2021
custody order and was not a modification of custody. (Id. at 17-18).
Finally, Judge Hilles explained that the court did not err when it denied
Father’s request for recusal. After an independent analysis, the court
determined it could and would be fair and impartial to both sides, and it
determined that there was no appearance of impropriety or issues involving
public confidence in the judicial system. (Id. at 18-19). As to the foregoing
points, we adopt Judge Hilles’ reasoning as our own.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/9/2023
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