J-S65015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.S. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : L.A.B. : : Appellant : No. 1348 MDA 2019
Appeal from the Order Entered July 25, 2019 In the Court of Common Pleas of York County Civil Division at No(s): 2011-FC-001342-03
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: FEBRUARY 28, 2020
L.A.B. (“Mother”) appeals the trial court’s July 25, 2019, order finding
Mother in contempt and awarding C.S. (“Father”) $500.00 in counsel fees.
Mother further challenges the trial court’s order reaffirming a prior custody
order of October 3, 2018, that awarded Mother and Father shared legal
custody and Father primary physical custody of the parties’ daughter, L.A.S.
(“Child” or “the Child”) (born February 2010). After careful review, we affirm
in part and vacate in part.
Beginning in September 2011, Mother and Father shared legal and
physical custody of Child. No further litigation activity occurred until May 2018,
when Father filed a petition for contempt and modification of custody.
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* Retired Senior Judge assigned to the Superior Court. J-S65015-19
The parties reached a resolution regarding Father’s petition and the trial
court entered an order on October 3, 2018, providing the parties with shared
legal custody. With respect to physical custody, the order divided the parties’
custody over two-week periods.
During the first week, the order granted Mother overnights on Monday,
Tuesday, Saturday, and Sunday. See Order, 10/3/18, at 2. The order granted
Father overnights on Wednesday, Thursday, and Friday. See id. During the
second week, the order granted Mother the Monday overnight, with Father
exercising physical custody for the remainder of the week. See id.
Custody exchanges occurred at the end of Child’s school day during the
week, and at noon on Saturdays and “any other non-school time.” See id.
Accordingly, during each two-week period, Father exercised physical custody
for nine overnights, and Mother exercised physical custody for five overnights.
Further, the court ordered the parties to engage in co-parenting
counseling; directed that the primary communication between the parties
occur through My Family Wizard; precluded Mother from drinking while Child
was present; instructed each party to have Child to school on time; and
required both parties “to use common sense in scheduling telephone calls to
talk to the child.” See id. at 4-12.
On February 28, 2019, Mother filed a petition for modification, seeking
a return to a shared physical custody schedule. Father responded by filing a
petition for contempt on March 13, 2019. Father’s petition alleged, inter alia,
that Mother: engaged in phone calls that were excessive, including during
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Father’s holiday, Thanksgiving; continued to drink alcohol while Child was
present; brought Child to school late twice; did not consider the welfare of
Child prior to filing her petition for modification; and failed to use Our Family
Wizard for all communications. See Petition for Contempt, 3/13/19, at ¶¶ 5-
9.
The court held a combined hearing on the petitions on July 23, 2019. At
the hearing, Mother, Father, Child’s maternal grandmother, Child’s paternal
grandmother, and Father’s wife, N.S. (“Stepmother”) testified. Further, the
court interviewed Child in camera.
Following the hearing, the trial court denied Mother’s petition for
modification by reaffirming the October 3, 2018, custody order.1 See N.T.,
7/23/19, at 128-29. The only change to the prior order was that the parties
were discharged from co-parenting counseling. See id. In support, the court
placed the following findings of fact and conclusions of law on the record.
The first factor is which party is more likely to encourage and permit frequent and continuing contact between the child and the other party. We find that to be a neutral factor. We already stated that the child [] indicated that the parents are getting along better and we heard no testimony that either party was trying to keep the child from the other party and so that is really not a factor.
Second factor is any past or present abuse. We heard no testimony on that. We don’t believe any abuse has taken place, so factor number two is also not a factor. Factor 2.1 is relative to
1 The court stated: “it is the Order of Court in this matter that the order of [October 3] of 2018 is ratified in full.” N.T., 7/23/19, at 128-29.
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possible child abuse and protective services. Again, we heard no testimony on that, and, therefore, factor 2.1 is also not a factor.
Factor 3, the parental duties performed by each party on behalf of the child. We find that slightly in favor of Father. While Mother seems to be doing a good job as a mother, it is clear to this [c]ourt and candidly it was clear to this [c]ourt back in September when we took testimony before the agreed-upon order, that Father is[,] for lack of a better term, a super dad. The enthusiasm about which he testified today about the things that he does with [Child] and the way he has manipulated his work hours and job requirements so that he can spend almost every weekday that [Child] is with him he can spend with her by working at home, and a lot of other testimony indicates that he is [a] far better than average father. Accordingly, that factor is lightly in favor of Father.
Factor 4, is [the] need for stability and continuity in the child’s education, family life, and community life. Again, this is slightly in favor of Father. Mother has continued, as she did when we heard this matter back in September of last year, Mother has continued to be a bit of what we call irresponsible. She has been late for school three times, two by her own admission. She uses for day care and so forth people in her family that do have DUIs. That alone wouldn’t be a big deal, but it is just one of many reasons why we find Mother to be a bit irresponsible. She has abused the phone privileges. She didn’t show up for [the co- parenting counselor,] Laura Frie’s appointment. She totally missed her daughter’s dance recital, even though dance was the thing that Mother introduced the daughter to. Again, Factor 4 is slightly in favor of Father.
Factor 5, the availability of extended family. Clearly[,] both parties have a high deal of involvement with extended family, which is commendable and obviously this child has prospered from that. Therefore, that is a neutral factor.
Factor 6, the child’s sibling relationships. While V[.] is a step-sister, it was clear to this court before we started testimony and interviewed the child, herself, that [Child] considers V[.] to be a sister. The child[] did tell me about the things that she does with V[.]. It is clear they do a great number of things together. Father’s exhibits have pictures in them that they obviously do everything together while [Child] is with her father. Candidly, we
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find that relationship, even though it is a step-sister, we find it to be a sibling relationship and a fairly strong factor in favor of Father.
Factor 7, the well-reasoned preference of the child. Child very clearly said she did not want the schedule changed. I asked her several times in several different ways if there was anything she would change about the schedule, and she said not. Child, when interviewed by this [c]ourt[,] was intelligent, articulate, animated, funny, and just a wonderful child. These parties are doing a great job raising this child. I found what she told me to be totally credible with no coaching involved, so I take her preference with some fairly good amount of weight. Clearly[,] her preference is to keep the schedule the way it is, so that’s a factor in favor of keeping the order the way it is. Or[,] said differently, that is a factor in favor of Father.
Number 8, the attempts of a parent to turn the child against the other parent, unless there is domestic violence. I really didn’t hear any of that. I don’t think that’s a factor and we are not considering that as a factor.
Factor 9, which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs. Mother testified, and I believed her, that she is very loving and takes care of the child’s emotional needs well when the child is with her. However, Father, again[,] almost in like [a] super dad kind of role, obviously takes care of the child’s needs extremely well, including her emotional needs. We can’t help but find that factor slightly in favor of Father.
Factor 10, which party is more likely to attend to the daily, physical, emotional, developmental, educational and special needs of the child. Again, this is lightly in favor of Father. He went to both parent-teacher conferences. Mother testified she only went to one. Again, Mother missed the recital. Mother just seems to have trouble getting to places on time and reliably, whereas Father is much more consistent and attends to these things reliably.
Factor 11, the proximity of the residences of the parties. We had a stipulation that they live, I think it was seven miles apart. I think someone said that is 15 or 20 minutes. That is not a factor.
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Factor 12, each party’s availability to care for the child or ability to make appropriate child care arrangements. Again[,] like the extended family, both parties have done a commendable job of arranging for day care when necessary, having family provide that day care when it is necessary, and that really both parties are doing that so well that is a neutral factor.
Factor 13, the level of conflict between the parties and their ability to cooperate with one another. Back in September that was fairly poor. Whether it’s been the passage of time or the four or five sessions the parties had with Laura Frie or what, I’m not sure, but the level of conflict has abated and they are getting along better. I specifically asked [Child] if they ever argue, yell at each other, or call each other names, she said none of that. That is not a factor, and I am glad it’s not a factor. I commend both parties for deescalating the conflict.
I would very much like to see the parties use the appointment app on OurFamilyWizard. Apparently[,] neither of them understood that, so that is why we put it in the order. Since we have ratified the [October] 2018 order, they are to use OurFamilyWizard not just to communicate with each other but also for appointments. It makes it so easy to have everyone know when the appointments are, where they are, and there [are] no accusations that you didn’t tell someone about it, because it’s all documented on OurFamilyWizard. At any rate[,] it’s a neutral factor.
Factor 14, the history of drug and alcohol abuse. Candidly, we don’t believe that Mother has completely overcome her abuse of alcohol. Her family certainly hasn’t, but we really didn’t have anything solid to base that on, so we are not considering it as a factor.
Factor 15, the mental and physical condition of a party or a member of a party’s household. We heard nothing bad about anyone’s mental or physical condition, so that is not a factor.
Factor 16, any other relevant factor. There is no other relevant factor in this matter.
Id. at 129-35.
Further, the court found Mother in contempt, reasoning:
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[W]e find Mother in contempt of court for extended phone calls longer than common sense would dictate, particularly on the Thanksgiving [D]ay. Father testified that it was so long it interfered with their Thanksgiving meal. This is a 9/5 schedule. It is a shared schedule. It is not exactly 50/50, but it is a shared schedule, so the necessity for long telephone calls just is not there. We find Mother in contempt for that.
We also find Mother in contempt for missing the July 11th of 2019 appointment with Laura Frie. The Order was very specific that the parties were to do co-parent[ing] counseling with Mr. Bare, or if he wasn’t available, with someone else. They started that with Laura Frie. They were to continue that. The Order says that they were to continue that until discharged by the therapist. Mother didn’t do that, she didn’t show up on July 11th of 2019, so she is in contempt of court on that second count.
For the contempt of court, the [O]rder of the [c]ourt is that Mother shall pay the sum of $500 attorney’s fees to Father within 60 days of today.
Order, 7/25/19.
Mother timely filed a notice of appeal and concise statement of errors
complained of on appeal. The trial court authored a Rule 1925(a) opinion.
On appeal, Mother raises the following issues for our review:
1. The trial court abused its discretion and erred in making a finding of fact that the child expressed a clear desire to maintain the existing custody arrangements.
2. The trial court abused its discretion and erred in making a finding of fact that the existing schedule remains in the child’s best interests.
3. The trial court abused its discretion and erred in making a finding of fact that Mother continues to struggle with alcohol related issues when no testimony or other evidence substantiating such a finding was provided at trial.
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4. The trial court abused its discretion and erred as a matter of law in finding Mother in contempt for making a telephone call on Thanksgiving that was 45 minutes in length when the child herself contacted Mother and her family from Father’s cell phone.
5. The trial court abused its discretion and erred as a matter of law in finding Mother in contempt by missing one of the co- parenting counseling appointments as no notice had been provided to Mother that the missed appointment was a basis for a contempt allegation and finding.
6. The trial court abused its discretion and erred in maintaining a custody schedule which does not maximize time between the parties as the record establishes that Father works in Baltimore during the school year on Mondays, Tuesdays, and Wednesdays which coincide with Mother’s days off of work.
7. The trial court abused its discretion and erred by making findings of fact that Mother’s family members were inappropriate caregivers and/or support system as a result of DUI charges (not convictions).
Mother’s Brief at 6-8.2
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve ____________________________________________
2 In the argument section of her brief, Mother combines her second, third, sixth, and seventh issues.
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an error of law, or are unreasonable in light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
We have stated:
The discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), this Court
explained what constitutes an abuse of discretion.
Although we are given a broad power of review, we are constrained by an abuse of discretion standard when evaluating the court’s order. An abuse of discretion is not merely an error of judgment, but if the court’s judgment is manifestly unreasonable as shown by the evidence of record, discretion is abused. An abuse of discretion is also made out where it appears from a review of the record that there is no evidence to support the court’s findings or that there is a capricious disbelief of evidence.
Id. at 18-19 (quotation and citations omitted).
Further, this Court has stated: “[a]n 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
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ill will, discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107,
111 (Pa. Super. 2007) (quotation omitted).3
With any custody case decided under the Act, the paramount concern is
the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Therefore,
the Act provides that, upon petition, a trial court may modify a custody order
if it serves the best interests of the child. See 23 Pa.C.S.A. § 5338.
Section 5328(a) sets forth the best interest factors that the trial court
must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).
Trial courts are required to consider “[a]ll of the factors listed in section
5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
652 (Pa. Super. 2011) (emphasis in original).
Section 5328(a) of the Act provides as follows.
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
3 Mother argues that the trial court provided the incorrect standard of review in its opinion. See Mother’s Brief at 26-27. The trial court appropriately paraphrased what constitutes an abuse of discretion. See Trial Court Opinion, 9/4/19, at 3 (“An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the results of partiality, prejudice, bias or ill-will.”). Further, this issue is immaterial as we are applying the appropriate standard of review herein.
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(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and (2) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
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(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328.
Further, we have explained as follows:
Section 5323(d) provides that a trial court “shall delineate the reasons for its decision on the record in open court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen [Section 5328(a) custody] factors prior to the deadline by which a litigant must file a notice of appeal.” ...
In expressing the reasons for its decision, “there is no required amount of detail for the trial court’s explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations.” A court’s explanation of reasons for its decision, which adequately addresses the relevant factors, complies with Section 5323(d).
A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014) (citations omitted).
In her first issue, Mother contends that the trial court erred in
concluding, “[C]hild expressed a clear desire to maintain the existing custody
arrangement. . . .” See Mother’s Brief at 13. Mother asserts that Child
expressed ambivalence about the current physical custody schedule and
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stated “she wanted the decision to be made by the adults. . . .” See id. at
14-15. Additionally, Mother claims that the court failed to ask appropriate
questions of Child. See id. at 15. Mother further argues that, based on the
court’s improper determination of Child’s preference, the court erred in
weighing custody factor seven, the well-reasoned preference of the child,
based on the child’s maturity and judgment, in favor of Father. See id. at 20-
21.
Mother highlights the following portion of the court’s in camera
questioning of Child:
THE COURT: . . . Well, [Child], I think, and please tell me if I’m wrong, but I think the current arrangement where you spend a little more time at dad’s house than you do at mom’s, I think that has been in effect for a little less than a year. Do I have that about right?
[Child]: Yeah.
THE COURT: How do you like that?
[Child]: I mean, it’s good.
THE COURT: Anything you would change in it?
[Child]: Not really. I mean, it’s good. I mean, it’s fun and not that different. It just doesn’t feel that different, but you guys can just decide.
THE COURT: Well, I appreciate that. You don't have any suggestions for me as to anything to change?
[Child]: Not really. I mean, it’s like good and like I want you guys to decide.
N.T., 7/23/19, at 13-14.
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Our standard of review gives great deference to the trial court who
viewed and assessed Child first-hand. See C.R.F. v. S.E.F., 45 A.3d at 443.
Contrary to Mother’s argument, the trial court questioned Child appropriately
and obtained Child’s opinions regarding the current custody schedule. Based
upon this testimony, the trial court concluded, “[Child] very clearly said she
did not want the schedule changed.” See N.T., 7/23/18, at 132. Upon a
review of the record, and in consideration of the deference afforded the trial
court, we discern no abuse of discretion with regard to the trial court’s
conclusion. Accordingly, Mother’s first issue does not merit relief.
Although Mother lists issues three and seven separately in her statement
of questions involved, she incorporates them into her brief as part of her
second issue. We discuss them separately from Mother’s general objections to
the trial court’s analysis of the custody factors for ease of disposition. Mother
faults the court for mentioning Mother’s alcohol use, because, “[a]lthough the
court indicated that it was not considering Mother’s inability to overcome her
abuse of alcohol is a factor, it is readily apparent that in fact it did, otherwise
there would have been no need to mention it at all.” Mother’s Brief at 25-26.
Further, Mother asserts that the trial court improperly considered DUI charges
incurred by Mother’s sister-in-law and Child’s maternal grandmother that did
not result in convictions. See id. at 18. Mother argues that the court found
her to be “irresponsible” based on Mother utilizing these individuals as
caregivers. See id.
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The trial court addressed these issues as follows:
It is denied that the [c]ourt abused its discretion and erred in making a finding of fact that Mother continues to struggle with alcohol related issues when no testimony or other evidence substantiating such a finding was provided at trial. Mother mischaracterizes the [c]ourt’s statement that the [c]ourt did not “believe that mother has completely overcome her abuse of alcohol.” The [c]ourt made no such finding of fact, but rather was expressing the [c]ourt’s impression of the conflicting testimony regarding Mother’s continued alcohol abuse presented at the custody trial. Furthermore, as shown by the [c]ourt’s statement with respect to Factor 14, the history of drug and alcohol abuse, on the record the [c]ourt specifically stated[,] “we don’t believe that Mother has completely overcome her abuse of alcohol. [B]ut, we really didn’t have anything solid to base that on so we are not considering [it as] a factor.” Thus, the [c]ourt acknowledged that there was no solid testimony or other evidence presented to support the allegation against Mother, and therefore no finding of fact as to Mother’s alleged alcohol abuse was put on the record. Therefore, the [c]ourt did not abuse[] its discretion and err in making a finding of fact that Mother continues to struggle with alcohol related issues, because the [c]ourt did not make a finding of fact on the record that Mother does in actuality have an alcohol related issue.
***
It is denied that the [c]ourt abused its discretion and erred in making a finding of fact that Mother’s family members were inappropriate caregivers and/or support system as a result of DUI charges. Again, Mother mischaracterizes the [c]ourt’s description of the [m]other’s extended family members. The [c]ourt made no finding of fact that Mother’s extended family members were inappropriate as caregivers for the Child, but rather the [c]ourt stated an observation that several members of Mother’s extended family members, whom could possibly provide care for the Child, had a history of alcohol abuse. While the [c]ourt made no finding of fact as to the appropriateness of these family members as caregivers for the Child, the [c]ourt did express an opinion that it was an example of Mother’s less than perfect decision making. However, when going through the custody factors on the record, the [c]ourt also stated that: “[B]oth parties have done a commendable job of arrang[ing] for day care when necessary,
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having family provide that day care when it is necessary and that really both parties are doing that so well that is a neutral factor.” The [c]ourt did not weigh the negative traits of Mother’s extended family against her in deciding the custody schedule. Therefore, the [c]ourt did not abuse[] its discretion and err in making a finding of fact that Mother’s family members were inappropriate caregivers and/or support system as a result of DUI charges, because the [c]ourt did not make such a finding of fact, but rather was expressing an opinion and did not give weight to that opinion against Mother.
Trial Court Opinion, 9/4/19, at 9-10, 14 (citations to the record omitted).
Here, Mother speculates that the trial court considered her alcohol abuse
and her family’s history of DUIs against her.4 Yet, the trial court expressly
disclaimed any such reliance. Given the trial court’s representation that it did
not weigh these issues against Mother, we conclude that Mother’s issues lack
merit.
We now turn to Mother’s overarching argument, contained in her second
issue, that the trial court made a litany of errors in considering, analyzing,
and weighing the custody factors. Mother contends that the court engaged in
a “tortured analysis with regard to the custody factors to reach its conclusion
that the existing schedule remained in the child’s best interests.” See
Mother’s Brief at 16. Further, Mother asserts, generally, that the trial court’s
award of custody is inconsistent with its findings that Child is well adjusted
and doing well. See id. at 20-23.
4 Mother testified that various family members “have” or “has” DUIs. See id. at 72-74. While Mother argues that these are charges rather than convictions, this is not clear from the record.
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With respect to custody factor four, the need for stability and continuity
in the child’s education, family life and community life, Mother argues that she
was justifiably late getting Child to school on two occasions. See id. at 17.
Mother further assails the trial court for suggesting that Mother “utilizes people
in her family who have DUI’s,” for concluding that Mother “abused” her phone
calls with Child, and for considering Mother’s failure to attend a co-parenting
counseling session. Id. at 18-19. Moreover, Mother contends that the court
improperly faulted Mother for not attending Child’s dance recital because the
recital occurred when Mother did not have custody. See id. at 19-20.
Mother further claims that the court erred in considering custody factor
nine, which party is more likely to maintain a loving, stable, consistent and
nurturing relationship with the child adequate for the child’s emotional needs.
See id. at 21. Mother argues that the court erred in finding this factor favored
Father based on its conclusion that, although Mother is loving towards Child
and takes care of her emotional needs, Father acts as a “super dad.” Id.
Further, Mother asserts that Father is not as available to care for Child as
Mother due to his work schedule.5 See id. at 21-23.
5For similar reasons, Mother argues that the trial court erred in determining custody factor ten, which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child, favored Father. See Mother’s Brief at 23.
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Moreover, Mother faults the trial court for determining that custody
factor eleven, the proximity of the residences of the parties, is “not a factor.”
See id. at 23. Mother asserts that the trial court failed to consider that Mother
now resides in the same school district as Father. See id. Mother further
argues that the court correctly determined that custody factor thirteen, the
level of conflict between the parties and the willingness and ability of the
parties to cooperate with one another, is neutral. See id. at 24. However,
Mother argues that this factor being neutral strongly suggests an equal shared
custody arrangement. See id.6
We conclude that the record supports the trial court’s findings of fact
and conclusions of law. Mother testified that she works for her brother and
that her work schedule is flexible enough that she does not work when she
has custody of Child. See N.T., 7/23/19, at 26-33. Mother acknowledged that
6 With respect to custody factor six, the child’s sibling relationships, Mother asserts that the trial court erred because it considered Child’s relationship with her stepsister, who resides with Father and Stepmother. See Mother’s Brief at 20. Mother claims that there is no precedent extending this factor to stepsiblings. See id. However, this Court has previously considered stepsibling and quasi-sibling relationships in assessing a child’s best interests. See M.E.V. v. F.P.W., 100 A.3d 670, 678 (Pa. Super. 2014) (“Plainly all of the sibling, step-sibling, and quasi-sibling relationships in this case have either emerged or evolved since the trial court’s 2012 order was entered in ways that bear materially on the Children’s best interests.”). Moreover, the comment to Section 5328 provides that “[s]ubsection (a)(6) is intended to include full-blood siblings, half-blood siblings, step-siblings and adoptive siblings.” Accordingly, the trial court did not err in considering Child’s relationship with her stepsibling.
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Child was late for school a number of times during second grade, but testified
that, after September 2018, Child was late for school during her custody time
on only two occasions due to traffic issues and car problems. See id. at 37-
38.
Mother testified that Child is engaged in extracurricular activities
including dance, gymnastics, and kickboxing. See id. at 48-49. Mother
conceded that she missed Child’s dance recital. See id. at 71. Mother was
uncertain whether the dance recital occurred during her custody time and she
could not take time off work, or if the dance recital fell on Father’s custody
time. See id. at 71-72.
Mother testified that both parents performed equal parental duties,
noting that Child did her homework during both her and Father’s custody time,
and that both attended Child’s medical appointments. See id. at 39-40, 58.
Mother further testified that both she and Father were capable of providing a
loving, stable, consistent and nurturing relationship with Child. See id. at 61.
With respect to co-parenting counseling, Mother believed that it was helpful,
but acknowledged that she failed to attend one session because she forgot
about the appointment. See id. at 63-66, 74-75. Mother asserted that Child
preferred a shared physical custody schedule, claiming that Child informed her
that she preferred such a schedule. See id. at 58-59.
Father testified that he works in Baltimore as an information technology
manager and essentially sets his own schedule. See id. at 80. Father works
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from home on Thursday and Friday. See id. at 80-81. On Monday through
Wednesday, Father leaves home at 5:00 a.m. and returns between 5:30 and
6:00 p.m. See id. at 102. Child returns from school between 3:00 and 3:30
p.m. See id. at 103.
Father testified that, before Mother filed her petition to modify custody,
there were a number of times that Child did not do her homework during
Mother’s custodial time. See id. at 84-85. Father further testified that Child
was late for school four times after September 2018. See id. at 90. Three of
those occasions occurred during Mother’s custodial time and one occurred
during Father’s custodial time, when his mother was five minutes late getting
Child to school after a two-hour weather delay. See id. at 90-91.
Father also complained that Mother called Child for excessively long
times, including when Mother called and FaceTimed Child on Thanksgiving,
interrupting the family dinner. See id. at 91-92.
Further, Father testified that he signed Child up for kickboxing and
gymnastics, as well as a summer camp. See id. at 82-83. After Mother filed
the petition to modify custody, Father testified that Mother attempted to be
“super mom.” Father explained that Mother then ensured Child was “[g]etting
baths on a regular basis, things like that. All of a sudden in almost nine years
she wasn’t in any extracurricular activities and all of a sudden she is in dance.
Just like trying to be super mom, but where was it at for the past nine years.”
See id. at 85. Father asserted that he is “a loving father. I do whatever I can
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for [Child]. I am open to any of her concerns and things like that. . . .” See
id. at 90.
Here, the trial court, in a comprehensive fashion, considered and
weighed all relevant factors. In essence, Mother questions the trial court’s
conclusions and assessments and seeks to have this Court re-find facts, re-
weigh evidence, and/or re-assess credibility to her view of the evidence.
We cannot do this absent an abuse of discretion. See C.R.F., 45 A.3d
at 443; see also E.R., 129 A.3d at 527. As we stated in King v. King, 889
A.2d 630, 632 (Pa. Super. 2005):
It is not this Court’s function to determine whether the trial court reached the ‘right’ decision; rather, we must consider whether, ‘based on the evidence presented, [giving] due deference to the trial court’s weight and credibility determinations,’ the trial court erred or abused its discretion. . . .
(citation omitted). The trial court carefully and appropriately considered each
custody factor. Upon review, we conclude that the trial court’s conclusions are
supported by the record, and we discern no error of law or abuse of discretion.
Accordingly, second issue on appeal merits no relief.
In her fourth and fifth issues, Mother challenges the trial court’s decision
to hold her in contempt for her failure to appear at a co-parenting counseling
session, and for calling Child for forty-five minutes on Thanksgiving. Mother
asserts that the trial court violated her due process rights by holding her in
contempt, sua sponte, for her failure to appear at one co-parenting counseling
session. See Mother’s Brief at 32-34. Moreover, Mother asserts that the trial
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court erred in holding her in contempt for the forty-five minute phone call on
Thanksgiving because the order in question contained no time frame for the
phone calls. See id. at 28-32.
As is the case with child custody orders in general, we review a contempt
order in a child custody case pursuant to an abuse of discretion standard of
review. Garr v. Peters, 773 A.3d 183, 189 (Pa. Super. 2001). Our child
custody statute provides as follows with respect to contempt of a custody
order and the award of sanctions.
(g) Contempt for noncompliance with any custody order.—
(1) A party who willfully fails to comply with any custody order may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punishable by any one or more of the following:
(i) Imprisonment for a period of not more than six months.
(ii) A fine of not more than $500.
(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.
(2) An order committing an individual to jail under this section shall specify the condition which, when fulfilled, will result in the release of that individual.
23 Pa.C.S.A. § 5323(g).
“As each court is the exclusive judge of contempts against its process,
we will reverse an order of contempt only upon a showing of a plain abuse of
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discretion.” In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super.
2004) (citation omitted).
We further explained in In re Contempt of Cullen:
To be punished for contempt, a party must not only have violated a court 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. Because the order forming the basis for civil contempt must be strictly construed, any ambiguities or omissions in the order must be construed in favor of the defendant. In such cases, a contradictory order or an order whose specific terms have not been violated will not serve as the basis for a finding of contempt. To sustain a finding of civil contempt, the 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. A person may not be held in contempt of court for failing to obey an order that is too vague or that cannot be enforced.
When holding a person in civil contempt, the court must undertake (1) a rule to show cause; (2) an answer and hearing; (3) a rule absolute; (4) a hearing on the contempt citation; and (5) an adjudication of contempt....
Fulfillment of all five factors is not mandated, however. [T]he essential due process requisites for a finding of civil contempt are notice and an opportunity to be heard.
Id. at 1210-11 (internal citations, quotation marks, and emphasis omitted).
“[W]hen the contempt proceedings are predicated on a violation of a
court order that followed a full hearing, ‘due process requires no more than
notice of the violations alleged and an opportunity for explanation and
defense.’” Diamond v. Diamond, 792 A.2d 597, 601 (Pa. Super. 2002)
(citation omitted).
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Mother argues that the underlying order states, “[b]oth parties are
expected to use common sense in scheduling telephone calls to talk to the
child[,]” but does not provide a set amount of time and is vague as to what is
permissible or impermissible. See id. Mother also challenges the trial court’s
factual conclusion that the call in question occurred on Thanksgiving. See id.
In response, Father argues that Mother made excessive phone calls, including
on Thanksgiving, and, further, that the trial court appropriately held Mother
in contempt sua sponte. See Father’s Brief at 14-19.
The full text of the applicable section of the order is:
Both parties are expected to use common sense in scheduling telephone calls to talk to the child. Both parties are hereby directed to refrain from preventing the parent who may be calling from talking to the child, or preventing the child from calling the other parent, provided that the phone calls are not excessively frequent nor too long in duration that they disrupt their schedule.
Order, 10/3/18, at 8.
Based upon our review of the record and the applicable law, we conclude
that the trial court erred in holding Mother in contempt. With regard to phone
calls, the order in question required the parties to use “common sense” in
scheduling phone calls, and required the custodial parent to permit such calls,
“provided that the phone calls are not excessively frequent nor too long in
duration that they disrupt their schedule.” See Order, 10/3/18, at 8. Here,
as the non-custodial parent, Mother’s responsibility was to use her “common
sense” with respect to phone calls with Child. Such a provision is not “definite,
clear, and specific—leaving no doubt or uncertainty in the mind of the
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contemnor of the prohibited conduct.” See In re Contempt of Cullen, 849
A.2d at 1210. Accordingly, the trial court erred by holding Mother in contempt
for the Thanksgiving phone call.
However, the court also found Mother in contempt for missing the co-
parenting session. The court did not credit Mother’s excuse for missing the
meeting. As a result, the court found that Mother’s unexcused absence from
the meeting was sufficient basis to find Mother in contempt of the custody
order.
Nonetheless, the trial court lacked the authority to hold Mother in
contempt sua sponte without providing Mother notice that missing the
meeting was an alleged basis for contempt. See Sutch v. Roxborough
Mem’l Hosp., 142 A.3d 38, 70 (Pa. Super. 2016) (“If contempt sanctions are
based on the violation of a court order, then due process requires notice of
the violations alleged …”). Father’s petition does not assert the failure to
attend the co-parenting class as a basis for finding Mother in contempt. See
Father’s Brief at 19.
Under these circumstances, we conclude Mother was not on notice that
her failure to appear for one co-parenting session could be the basis for a
finding of contempt. Accordingly, the trial court lacked the power to hold
Mother in contempt for her failure to attend the session.
Custody order affirmed. Contempt order vacated. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 02/28/2020
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