Broda, L. v. Kluver, R.

• Court: Superior Court of Pennsylvania
• Decided: May 20, 2024
• Docket: 1498 WDA 2023
• Status: Unpublished

Opinion

J-S13016-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

LEONA E. BRODA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT G. KLUVER, JR. : : Appellant : No. 1498 WDA 2023

Appeal from the Order Entered November 17, 2023 In the Court of Common Pleas of Somerset County Civil Division at No(s): CP-56-CV-0000136-2016

BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY BECK, J.: FILED: May 20, 2024

Robert G. Kluver, Jr. (“Father”) appeals pro se from the order entered

by the Somerset County Court of Common Pleas (“trial court”) denying his

petition to find Leona E. Broda (“Mother”) in contempt of the parties’ custody

order.1 On appeal, Father argues that the evidence established Mother was

in contempt of the parties’ custody order because she physically disciplined

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* Former Justice specially assigned to the Superior Court.

1 Although this appeal involves a contempt of custody action, we will use the

parties’ names in the caption “as they appeared on the record of the trial court at the time the appeal was taken.” Pa.R.A.P. 904(b)(1). “[U]pon application of a party and for cause shown, an appellate court may exercise its discretion to use the initials of the parties in the caption based upon the sensitive nature of the facts included in the case record and the best interest of the child.” Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907(a). Neither party applied for the use of initials in the caption. We will, however, refer to the children involved in this dispute by their initials to protect their identity. J-S13016-24

their children, which the custody order expressly prohibited. After review, we

reverse and remand for further proceedings.

Father and Mother were never married, but had three sons together,

J.G.K. (born October 2002), J.D.K. (born June 2007), and J.L.K. (born January

2009). The parties have a contentious relationship and have each filed

numerous petitions seeking custody modification. In May 2016, the parties

agreed to share legal and physical custody. Subsequently, the parties learned

J.G.K. had sexually abused his younger siblings.2 Recognizing the younger

children had to be separated from J.G.K., in September 2016, the parties

agreed to a custody arrangement whereby the younger children stayed with

Mother on weekdays while J.G.K. stayed with Father, and Mother had custody

of J.G.K. on the weekends, while Father had custody of the younger children

on alternating weekends. Mother was required to find childcare for the

younger children when J.G.K. was also at her home on the weekends. On

November 15, 2017, the trial court entered a custody order specifying the

parties’ agreement that would keep the younger children separate from their

older brother.

2 According to Father, J.G.K. was adjudicated delinquent of indecent assault

in November 2016.

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Following a protracted history, on November 8, 2021,3 the parties

entered into a custody agreement for the two younger children, which

superseded all prior orders.4 The order gave Mother and Father shared legal

custody, Mother primary physical custody during the school year, Father

partial physical custody during the school year, and the parties shared physical

custody during the summer. Relevant here, the order also stated that the

parties were prohibited from physically disciplining the children. Notably, the

order did not state anything related to J.G.K., and contained no prohibitions

for contact between the minor children and their older brother.

On November 6, 2023, Father filed a petition for contempt of the custody

order, noting that Mother violated the order by physically disciplining the

children. Specifically, Father argued Mother attempted to tase J.D.K. with the

assistance of J.G.K. That same day, Father filed an emergency custody

petition seeking full custody of the minor children. The trial court held a

hearing.5 The trial court interviewed J.D.K. and J.L.K. in chambers outside

3 The order was dated October 26, 2021, but not filed until November 8, 2021.

4 J.G.K. was not subject to the custody order because he was over eighteen

years old at the time.

5 Father also filed two protection from abuse petitions on behalf of the younger

children and himself against Mother and J.G.K. The trial court initially granted temporary PFA orders. However, following the hearing, the trial court vacated the temporary PFA orders and declined to enter final PFA orders against Mother and J.G.K. The trial court’s denial of Father’s PFA petitions against Mother and J.G.K. are the subject of separate appeals.

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the presence of Mother and Father. Following the interviews, the trial court

found that neither child had been physically disciplined by Mother since the

entry of the parties’ November 2021 custody order. Further, the trial court

found that neither child was fearful of Mother nor desired a change to the

existing custody order. Therefore, the trial court denied Father’s contempt

petition, concluding that there were no grounds for finding Mother in

contempt. Father filed a timely appeal and a concise statement of matters

complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure

1925.

Father raises the following question for our review: “Did the trial court

abuse its discretion when it failed to find [Mother] in contempt of the existing

custody order based on the preponderance of evidence?” Father’s Brief at 5.

“In reviewing a trial court’s finding on a contempt petition, we are

limited to determining whether the trial court committed a clear abuse of

discretion.” Rogowski v. Kirven, 291 A.3d 50, 57 (Pa. Super. 2023) (citation

omitted). “This Court must place great reliance on the sound discretion of the

trial court when reviewing an order of contempt.” Id. (citation and brackets

omitted).

Father contends that the trial court abused its discretion in failing to find

Mother in contempt of the custody order because the evidence at the hearing

established that Mother both physically disciplined J.D.K. and attempted to

physically discipline the child. Father asserts that J.D.K. testified that Mother

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had committed other acts of physical discipline—including slapping him in the

face and throwing a lighter at him—since the entry of the November 2021

custody order. Father’s Brief at 36-38; see also id. at 41-42 (noting that the

trial court found the children’s testimony to be credible). He further points to

J.D.K.’s statements that Mother activated an electronic device and attempted

to force her way into his bedroom, and that J.D.K. wanted someone to call

Father because he was in fear of being shocked. Id. at 27, 30. According to

Father, the testimony at the hearing established that Mother committed acts

of physical discipline and took “significant steps” toward using the device

against J.D.K., and that such acts were prohibited under the custody order.

Id. at 31, 36-38, 40-41. Father maintains that Mother was aware of the

physical discipline prohibition in the custody order, noting that a week prior to

the incident, Mother suggested to the children that she could use the electronic

device to bypass the custody order if they did something wrong. Id. at 29.

Additionally, Father disputes the trial court’s finding that Mother did not

violate the November 2021 custody order, arguing the court erroneously

conflated the PFA actions with the instant petition and that the custody order

specifically prohibits physical discipline, not abuse. Id. at 32-34. Father

asserts that the trial court could not justify the physical discipline where the

custody order plainly restricted any such discipline. Id. at 38-40. Father

further contends that J.G.K. was not allowed in the home when the children

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were present under multiple custody orders, and this requirement was never

modified by the November 2021 custody order. Id. at 43-44.

“To be in contempt, a party must have violated a court order, and the

complaining party must satisfy that burden by a preponderance of the

evidence.” J.M. v. K.W., 164 A.3d 1260, 1264 (Pa. Super. 2017) (citation

and brackets omitted). “[T]he complainant must 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. (citation omitted).

In the instant case, pursuant to the November 8, 2021 custody order,

“both parties agree that the children shall not be physically disciplined.”

Custody Order, 11/8/2021, at 4.

At the hearing, J.D.K. testified that he and Mother had an argument

about the death of his bearded dragon and that in his anger, he punched the

birdcage. N.T., 11/17/2023, at 7, 13-14. At this point, J.D.K. indicated that

he heard Mother’s taser “go off” and “fight-or-flight kicked in.” Id. at 7, 12;

see also id. at 10-11 (wherein J.D.K. described the taser as looking like a

small flashlight and electricity comes out of the top and further noted that

Mother used the device on their cats when they did something wrong). J.D.K.

stated that he ran to his room, shut the door, and held the door shut. Id. at

7-8. He testified that Mother attempted to push the door open and again

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heard the click of the taser. Id. at 8. J.D.K. asked someone to call Father.

Id.; see also id. at 9 (noting that J.L.K. called Father during the incident).

Mother eventually called J.G.K. to open the door; thereafter, J.D.K. opened

the door and wedged himself between the door and the wall. Id. Mother

came into the room, took J.D.K.’s laptop, and left the room. Id. J.D.K.

testified that Mother never used the taser on him. Id. at 11; see also id. at

11-12 (noting that a week before the incident, Mother stated she would use

the taser on the children to bypass the custody order, but J.D.K. could not tell

if she was being serious or joking).

During J.D.K.’s in camera testimony, the trial court asked him whether

Mother had physically disciplined him since the entry of the November 2021

custody order, and J.D.K. replied “yes.” Id. at 15-16. He indicated on one

occasion, Mother “smacked” him across the mouth with an open hand after he

called her a bitch. Id. at 17-18. J.D.K. also stated Mother hit him with a

lighter when she thought he was going to throw something at her. Id. at 18-

19. Finally, J.D.K. testified that on another occasion, Mother grabbed his face,

yelled at him, and threw him onto his bed after he could not find his socks.

Id. at 19-21; see also id. at 21-22 (noting that Mother had hit him with a

belt prior to the entry of the November 2021 custody order). J.D.K.

acknowledged that the incidents occurred because he was acting up or getting

out of line and testified that Mother never hurt him. Id. at 19-20, 23. J.D.K.

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stated he liked spending time with his Mother and was not afraid of her or

being at her home. Id. at 24.

J.L.K. testified that Mother had not physically disciplined him in over

four years. Id. at 34. J.L.K. indicated Mother only yells at him if he does

something wrong. Id. Regarding the taser incident, J.L.K. confirmed that

Mother and J.D.K. got into an argument about the care of his lizard and J.D.K.

punched a birdcage during the argument. Id. at 36. J.D.K. ran into his room

and Mother followed holding her phone and the “flashlight” that she used to

shock the cats. Id.; see also id. at 37 (describing the electronic device as

having a “9-volt shock” and stating that Mother indicated that it was like

“touching an electric fence”). During the incident, J.G.K. began calling Father,

but handed the phone to J.L.K. after Mother called J.G.K. to open the bedroom

door. Id. at 36, 38. J.L.K. stated that Mother had never shocked him with

the taser and that he had never seen her shock J.D.K. Id. at 37; see also

id. at 38 (noting that he only saw Mother use the taser on one occasion with

the cats). However, J.L.K. admitted that Mother threatened to use the device

on J.D.K. during the argument. Id.

The trial court found there were no grounds to find Mother in contempt

of the custody order. Id. at 43. The trial court stated the following:

I will say there clearly was an incident that occurred when [J.D.K.’s] bearded dragon/lizard died. He clearly was upset with [Mother] believing that maybe something she did caused that to occur. He was clearly upset. He was clearly angry. He did some things that caused [Mother] to understandably get upset. And, unfortunately, it just escalated from there to the point where

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[J.L.K.], [Mother], and [J.G.K.] all got upset and did things that they probably, looking back, realized they shouldn’t have done. It shouldn’t have gotten to that point.

… I don’t find that any physical discipline occurred that would be a violation of the current [c]ustody [o]rder. And I don’t find that any abuse occurred that would justify the entry of an [e]mergency [c]ustody [o]rder or for [the trial c]ourt to change the current custody order.

… My decisions are based on the firsthand information provided by [J.D.K.] and [J.L.K.], who were both present for these incidents[.] …

There were also allegations that [Mother] had used a belt to discipline [J.D.K.], but [J.D.K.] clearly told me that that has not happened in the last two years; and when I say the last two years, I’m emphasizing the last two years because the date of your [c]ustody [o]rder is November 8 of 2021, which means that it has been in place for roughly two years.

In order to find contempt, there must have been some violation of that [o]rder in the last two years. [J.D.K.] was clear though that in the last two years, there has not been any physical abuse nor has he ever been disciplined with a belt.

So that is my reason for not finding contempt of the current [c]ustody [o]rder.

Id. at 43-46; see also Trial Court Opinion, 1/9/2024, at 2 (unnumbered)

(concluding that “neither child had been ‘physically disciplined’ by Mother

since the entry of the parties’ [c]ustody [o]rder, … and therefore there were

no grounds for a contempt finding”).

The trial court’s denial of the contempt petition based upon the lack of

evidence Mother used the electronic device on J.D.K. has record support. See

J.M., 164 A.3d at 1266 (finding that where mother did not contravene an

existing court order, she could not be found in contempt). Likewise, Father’s

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claim regarding J.G.K.’s presence in Mother’s home with the younger children

does not establish Mother was in contempt, as the parties’ custody order did

not require the parties to continue to separate the children. See id.

Nevertheless, we conclude that the trial court abused its discretion in

summarily denying the contempt petition. The trial court wholly ignores the

testimony it elicited from J.D.K. wherein he explicitly stated that Mother had

“physically disciplined” him after the entry of the November 2021 custody

order by smacking him across the mouth, hitting him with a lighter, and

grabbing his face and throwing him onto his bed. Accordingly, the record

clearly shows that Father proved Mother’s contempt of the November 2021

custody order by the preponderance of the evidence. See E.B. v. D.B., 209

A.3d 451, 470 (Pa. Super. 2019) (concluding that the trial court abused its

discretion in denying father’s contempt petitions where there was evidence

that mother had violated the custody order); see also J.M., 164 A.3d at 1264.

Therefore, we reverse the trial court’s order. We remand the matter

and direct the trial court to impose an appropriate sanction, which may or may

not include a new custody arrangement if the court finds it to be in the minor

children’s best interests. See E.B., 209 A.3d at 470 n.18 (noting that upon

remand from reverse of contempt order, the trial court could address

modification of custody because it was addressing both modification and

contempt petitions); see also N.A.M. v. M.P.W., 168 A.3d 256, 262 (Pa.

Super. 2017) (noting that the trial court abused its discretion in failing to

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impose sanctions on mother where she was in contempt of the custody

orders).

Order reversed. Case remanded with instructions. Jurisdiction

relinquished.

DATE: 5/20/2024

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