J-A07004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
H.T., IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
K.T.,
Appellant No. 554 WDA 2015
Appeal from the Order March 3, 2015 In the Court of Common Pleas of Lawrence County Civil Division at No(s): 271 of 2009 D.R.
H.T., IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
K.T.,
Appellant No. 615 WDA 2015
Appeal from the Order March 3, 2015 In the Court of Common Pleas of Lawrence County Civil Division at No(s): 271 of 2009 D.R.
BEFORE: BOWES, MUNDY AND JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 15, 2016
K.T. (“Father”) appeals from the March 3, 2015 orders that (1)
confirmed the standing of H.T. (“Mother”) to seek child support and awarded
her retroactive support of $924.76 per month between May 2, 2014 and
January 12, 2015, whereupon the monthly payment increased to $1,147.30;
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and (2) denied Father’s petition for damages seeking counsel fees as
sanctions for Mother’s alleged obdurate conduct. We affirm.
Mother and Father married on December 31, 1999, separated on June
1, 2004, and divorced on August 30, 2013. One child, C.T., was born of the
marriage. The trial court succinctly summarized the relevant procedural
history of this bitterly contentious litigation concerning the financial support
and physical custody of C.T. as follows:
From March 2011 until October 1, 2013, the parties shared physical custody of the child on a 50/50 basis and Father was granted the shared custody deviation in the support matter. Shortly after the October 1, 2013 custody order was entered which gave Mother primary physical custody, the child began running away from Mother’s home to Father’s home. By January 1, 2014, despite the October 1, 2013 order, the child no longer stayed at the Mother's home. The October 1, 2013 custody Order was appealed by Father and the Superior Court affirmed the October 1, 2013 order.[1] Subsequent to the Superior Court affirmance, both parties filed petitions to modify the October 1, 2013 Custody order and cross-petitions for contempt. A lengthy subsequent custody trial was held. During the pendency of the trial, Father filed the within Petition to Modify Child Support, taking the position that he does not have a support obligation to Mother for the time period that he has had sole physical custody, and that Mother has an absolute obligation to pay support to Father. At the October 23, 2014 de novo [child support] hearing, the court issued an order that date directing that a decision in this case would be deferred until the completion of the pending proceedings in the related custody dispute between the parties at case No. 11297 of 2006, . . . as the Court findings in that case will impact the issue in this case relative to the effect of Father having the actual physical custody of the child since December of 2013.
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1 K.T. v. H.T., 104 A.3d 67 (Pa.Super. 2014) (unpublished memorandum).
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Trial Court Opinion, 5/26/15, at 2-3.
On February 27, 2015, the trial court reaffirmed Mother’s sole legal
and primary physical custody of C.T., and found Father in contempt for
exercising legal custody in violation of the prior custody order. Father
appealed, and the trial court issued a thorough ninety-one-page opinion
explaining its custody decision, which we subsequently adopted as our own
in affirming the February 2015 custody order. See K.T. v. H.T., 134 A.3d
101 (Pa.Super. 2015) (unpublished memorandum). As it relates to the
instant child support case, the trial court found that Father’s protracted
campaign of alienating C.T. against Mother nurtured his son’s refusal to
follow the custody arrangement and resulted in Mother’s inability to
effectuate her custody rights.2 Id. at attached Trial Court Opinion at 83-86.
Notwithstanding the trial court’s explicit finding that Father alienated C.T.
against Mother, it denied Mother’s contempt petition relating to physical
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2 The trial court granted Mother special relief in fashioning the custody order so that she could exercise her custody rights without reliance upon Father’s assistance with having C.T. comply with the custody arrangement. Specifically, paragraph sixteen of the February 2015 custody order authorized law enforcement and/or child protective services to return C.T. to Mother if he absconded while in her physical custody. We rejected Father’s challenge to this provision, K.T. v. H.T., 134 A.3d 101 (Pa.Super. 2015) (unpublished memorandum), and after an episode where C.T. refused to remain in Mother’s custody, he was adjudicated dependent pursuant to 42 Pa.C.S. § 6302(6), relating to a child that is habitually disobedient and ungovernable. We affirmed. See In The Interest of C.T. 1076 WDA 2015 (Pa.Super. 2016) (unpublished memorandum filed January 6, 2016).
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custody noting that “the specific allegations of [Mother’s contempt] petition
are either too general and vague or were unproven.” Id. at 89.
Meanwhile, as it relates to the second issue that Father levels on
appeal, on October 23, 2014, the parties discussed Father’s unresolved
petition for damages that he initially filed in August of 2012, but which
remained open due to the case being reassigned repeatedly among three
trial courts. During that hearing, Father stipulated that the record was
closed as to his motion and that the trial court would render its decision
“based on the record that was already made.” N.T., 10/23/14, at 3.
Essentially, the August 2012 petition asserted, inter alia, that Mother’s prior
counsel engaged in obdurate and vexatious behavior since October 2011 in
connection with her previous motions to modify child support and petitions
to have the case designated as complex support litigation, which was
ultimately granted on March 2, 2012. Father’s more recent complaints
involved Mother’s alleged delays in completing discovery and her prior
counsel’s allegedly duplicitous actions in scheduling and withdrawing motions
to modify Father’s child support obligation.
Following the February 2015 custody determination, the trial court
entered the above-referenced orders that awarded Mother monthly child
support despite C.T.’s refusal to respect Mother’s right to primary physical
custody, and denied Father’s petition for damages. With respect to the
support award, the trial court expressly incorporated by reference and took
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judicial notice of its exhaustively detailed opinion and order entered on
February 27, 2015, in the corresponding custody matter. In sum, the trial
court held that Mother “has standing to pursue child support since she was
granted primary physical custody of the child by Order of Court dated
October 1, 2013 and again by Order of Court dated February 27, 2015, and
[Father’s] retention of the child . . . has been in direct contravention of those
court orders[.]” Trial Court Order, 3/3/15, at 1.
In relation to its decision to deny Father’s petition for damages, the
court stated, “the Court does not find there to be a sufficient nexus between
the conduct of [Mother’s] prior counsel complained of and the amount of
damages claimed.” Trial Court Order, 3/3/15. Father filed timely appeals
and concomitant statements of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). This Court consolidated the appeals sua sponte and
directed the parties to brief and argue the appeals as one. On May 26,
2015, the trial court entered a Rule 1925(a) opinion that addressed Father’s
appeals jointly.
In explaining its decision to sustain Mother’s right to pursue child
support even though C.T. refused to respect the order awarding her primary
physical custody, the court concluded that, since Father’s de facto custody of
the parties’ son was a product of parental alienation, public policy and the
best interest of the child required it to recognize Mother as the custodial
parent, as outlined in the custody order, for the purpose of imposing the
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child support obligation. After citing the prevailing legal authority
addressing a custodial parent’s standing to pursue standing in this scenario,
Seder v. Seder, 841 A.2d 1074 (Pa.Super. 2004), and expressly
incorporating its February 27, 2015 opinion, the trial court reasoned,
Here, Mother has the legal right to custody and thus has standing. The court has determined by virtue of its opinion and order of court that it is in the child's best interest for Mother to have the custody as Father is alienating the child from Mother. It would be absurd to conclude that Father can act in defiance of the court order granting custody to Mother and then use that circumstance to avoid paying the child support that would follow from an award of custody to Mother.
Trial Court Opinion, 5/26/15, at 5.
Father presents the following questions for our review:
I. Whether the trial court abused its discretion in awarding child support to Mother when Mother did not have physical custody of the child and the child had not been in her physical custody for nearly a year?
II. Whether the trial court erred and committed an abuse of discretion in failing to award damages to Father when Mother engaged in dilatory, obdurate, or vexatious conduct by requesting that the support matter be deemed complex for discovery without need, then failing to engage in said discovery, failing to give timely notice to counsel and/or Father of the presentation of Motions and continuing the matter unnecessarily?
Father’s brief at 5.
We evaluate Father’s claims in light of the following standard of review
of child support orders:
Appellate review of support matters is governed by an abuse of discretion standard. When evaluating a support order,
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this Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record. The principal goal in child support matters is to serve the best interests of the children through the provision of reasonable expenses.
R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013)(quotations and citation
omitted).
The crux of Father’s first claim is that he was entitled to terminate his
monthly child support obligation of approximately $1,000 per month because
he had de facto custody of C.T. during the relevant period. Relying upon our
discussions in Riley v. Foley, 783 A.2d 807 (Pa.Super. 2001) and J.F. v.
D.B., 942 A.2d 718 (Pa.Super. 2008), Father asserts that actual custody,
rather than the terms of the child custody order, controls the determination
of a support obligation. Furthermore, he attempts to distinguish the facts of
this case from the facts underlying our decision in Seder, supra, based
upon the trial court’s finding that he was not in contempt of the October 1,
2013 custody order even though it undeniably found that Father was
alienating C.T. against Mother. Recall that the trial court declined to hold
Father in contempt in relation to C.T.’s disobedience due to shortcomings the
court perceived in Mother’s pleadings and her proof of specific allegations of
Father’s contumacious conduct. Father misstates the court’s decision to
forego a finding of contempt as an endorsement of his de facto custody.
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See Father’s brief at 16 (“There were specific findings that Father was not in
contempt by having custody of [C.T.] during [the relevant] time period.”).
Father’s preoccupation with the fact that he was not found in contempt
of the prevailing custody order is misplaced.3 The Seder Court’s rationale
did not rest upon the fact that the offending parent was found to be in
contempt of a custody order. In reality, as outlined supra, the Seder court
focused on the offending parent’s conduct and reasoned that it would be
contrary to public policy, nay, “absurd” to reward a defiant parent for
impinging on the other parent’s custodial rights. Seder, supra, at 1077.
Instantly, Father ignores the trial court’s express finding of parental
alienation and equates the court’s conclusion that he did not actively violate
the custody order with a finding that the alienation did not occur. He is
wrong. Rather than issuing its imprimatur of Father’s de facto physical
custody based upon Father’s implicit validation of C.T.’s disobedience, the
court expressly admonished Father for alienating Mother and for his
superficial responses to his son’s defiance. Thus, Father’s attempt to
distinguish the essential component of our holding in Seder from the facts in
the present case fails.
____________________________________________
3 In addition, we observe that Father was, in fact, found in contempt of the October 2013 custody order, albeit for willfully and intentionally encroaching upon Mother’s authority to exercise sole legal custody of C.T. Thus, to the extent that Father’s argument is founded upon the absence of a contempt finding, once that lynchpin is removed, the claim fails for this reason also.
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In relation to his second issue, Father argues that the trial court erred
in failing to make specific findings of dilatory and vexatious behavior by
Mother’s former counsel and in failing to award him the damages that he
requested. Essentially, he challenges the trial court’s determination that the
record did not sustain his claim for damages in light of the fact that, (1) in
addressing an earlier grievance, a prior trial court declined to find that
Mother’s counsel engaged in dilatory or vexatious conduct and (2) Mother
prevailed on several of the requests that formed the underpinnings of
Father’s allegations. Father simply asserts his perspective that the certified
record is adequate to establish what he views as Mother’s attempt to
manipulate the court’s motion and petition procedures to her strategic
benefit. He also challenges the trial court’s finding that it could not assess
the evidence he adduced to support the claimed legal fees without further
testimony linking the figures to the specific allegations of dilatory and
vexations conduct. Again, we disagree.
Stated plainly, having agreed that the record was closed as to this
issue, Father cannot now assert reversible error due to the court’s finding
that the record was insufficient to sustain his claims. While Father
undoubtedly believed that he satisfied his burden of proof based on the
evidence that he adduced, the trial court did not. As our standard of review
is deferential to the trial court’s weight and credibility determinations, we
will not reweigh the evidence to reach a conclusion in Father’s favor. See
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Habjan v. Habjan, 73 A.3d 630, 644 (Pa.Super. 2013) (Superior Court
defers to court’s credibility determinations).
After a thorough review of the certified record, the parties’ briefs, and
the pertinent law, in addition to the reasons outlined supra, we affirm the
child support order and the order denying Father’s petition for damages on
the basis of the cogent and well-reasoned opinion of the learned President
Judge Dominick Motto entered on May 26, 2015.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/15/2016
Circulated 06/23/2016 09:53 AM
HtJ1111 I) • '
IN THE COURT OF COMMON PLEAS Plaintiff LAWRENCE COUNTY, PENNSYLVANIA vs. NO. 271 OF 2009 D.R.
1
K... "Il?i IiI I PACSES NO. 564103710 Defendant
Af_e_EARANC F,~
For the Plaintiff: Richard Ducote, Esq.
Erica Burns, Esq. Richard Ducote, PC 4800 Liberty Avenue · 3rd Floor . Pittsburgh, PA 15224
For the Defendant: Richard B. sandow, Esq.
c. Kurt Mulzet, Esq. Stephanie T. Anderson, Esq. Jones, Gregg, Creehan &
Gerace, LLP
411 seventh Avenue suite 1200 Pittsburgh, PA 15219
OPINION
MAY 261 2015
MOTTO, P.J.
The Defendant Father has filed two separate appeals from separate orders issued by the court on March 3 1 2015, one order found that the Plaintiff Mother· has standing to pursue child support since she was granted primary physical custody of the child by order of court dated October 1, 2013 qnd again by Order of court dated February 27, 2015, and that the retention of the child by Father has been in direct contravention of those orders.
The second order appealed from denied Father's Petition for 53RD Damages I seeking attorneys fees because of alleged di ·1 atory JUD IC IA"- DISTRICT conduct of prtor counsel of Mother.
•-AWRf:NCE COUNTY PENN5YLVA.N\A
Although Father filed separate appeals, the court will consider both matters in one Pa.R.A.P. 1925(a) statement.
As to each appeal filed from each order, the court directed Father to fi 1 e a concise statement of mat ters complained of on appeal pursuant to Pa.R.A.P, 192S(b).·.
As to the order of court awarding Mother child suppor t,:
Father states that the court committed an abuse of discretion in awardin~ child support to Mother when Moth~r did-ndt have physical custody of the child and the child had not been in her physical custody for nearly a year.
Mother filed for modification of a prior support order dated May 22, 2013 because of the entry of an order of this court dated octobe r 1, 2013 which awarded her pri mary physi ca1 and sole legal custody. of the child, which is the subject of these p~oceedings.
From March 2011 until October 1, 2013, the parties shared ·!
physical custody of the child on a 50/5.0 basis and Father was granted the shared custody deviation in the support matter. shortly after the October 1, 2013 custody order was· entered ..
which gave Mother primary physi ca 1 custody, the child began running away from Mother's home to Father's home. BJ January 1, 2014, d~spite the October 1, i013 order, the child no longer stayed at the Mother's home. The October 1, 2013 custody order was appealed by Father and the superior court affirmed the October 1, 2013 order. subsequent to the superior court affirmance, both parties fi Ied petitions to modify the October 53RD JUDICIAL DISTRICT · 1, 2013 custody order and cross petitions for contempt. A lengthy subsequent custody trial was held. During the pendency 1.AWRENCE COUNT'< PENNSYLVANIA 2
of thE trial I
Father filed the wl th in Pet·ition to Modify Child support, taking the position that he does not have a support obligation to Moth~r for the time period that he has had sole physi ca 1 custody, and that Mother has an abso 1 ute ob 1 i gation to pay support to Father. At the October 23, 2014 de novo hearing, the court issued an order that date directing that a decision in this cas~ would be deferred.until the completion of th~pending proceedings ; n the rel ated custody dispute between the parties at case No. 11297 of 2006, C.A, as the court findings in that case will impact the issue in this case relative to the effect of Father having the actual physical custody of the child since December of 2013.
The result of the related custody proceedings at case No.
11297 of 2006, C.A. was that the court issued a lengthy opinion and order of court which awarded primary physlcal custody of the child to Mother, and also found that the fact that Mother had not had.the child was due to the actions of Father in alienating the child from Mother. The court further directed that if the child at-tempted to again run from Mother that the child was . not to be returned to Father. The court incorporates herein by reference the Opinion and order of court entered in case =K--
rl f v. Htlll TT a, No. 11297 of 2006, C.A. and dated February 27, 2015. The court here found that since the retention of the child by Father was in contravention of the court orders and the product of his alienating behavior, Mother therefore had standing to continue to receive child support.
S3RO JUDICIAL Ol$iRICT In Seder v. Seder, 841 A.2d 1074 (Pa.Super. 2004), the superior court held that the father who was awarded p rimary ~AWRr-NCI:'. C:OVNTV l'ENNSYI..V/\NIA 3
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custody of a child had standing to commence an action for child support, even though the child was living with mother. The father had been grant~d primary physical custody of the child, while the mother had left the country with the child, in contravention of the custody order. The court noted that the statute governing commencement of support actions did not limit standing only to those who actually cared for a child,' but al so conferred st andinq on· those who had the legal right. to custody. 23 Pa.c.s.A. §4341; Pa.R.C.P, 1910.3.
The sede r court addressed the 1 anguage of 23 Pa. c.s .A.
§4341 which, in a 1997 amendment provided that any person caring for a child shall have .standing to commence or continue an action for support regardless of whether a court or.der has been issued granting that person custody of the child. Previously, the sup~em~ court in Larson v. oiveglea, 549 Pa. 118, 700 A.2d 931 (1997) held that only a person with an order granting.leg~l or physical custody has standing to bring an action for child support, the Larson court basing its conclusions upon ra.R.C.P. 1910.3 and 1915.1. Pa.R.C.P, 1910.3(b) provides that. an action shall be brought on behalf.of a minor child by a person having custody of the child, with Pa.R.C.P. 1915.1 providing that custody is defined as the legal right to keep, control; guard, care for and preserve a child and includes the terms "Teqal custody", "physical custody", .and .. shared custody[.]" The Seder court held that the apparent 'conf I'ict between Pa.R.C.P. 1910.3 and the standing provision of 23 Pa.c.s.A. §4341 is resolved by SJRD JUDICIAL OISTRICT finding the amendment to §4341 enlarges the population that has standing to pursue an action for child support, by conferring 1.AWRetr,tCr:. CO\JNTY l'O:NNSVL\' ... NI ... 4 standing on a party actually caring for a child but without a court order granting custody to the party, but does not preclude standing under Rule 1910.3(b) pursuant.to which parties with legal right to custody have standing. The Seders court stated that:
Were we to find otherwise, we would reach the absurd result that mother, who has acted in defiance of the court order iranting custody to father, has standing to pursue child support since she is actually caring for the child, but father-, . who has legal right to custody of the child and who would be actually caring for the child but for mother1s acts in violation of the court order, lacks standing to do so. Instead we agree with the trial court which concluded father has standing to seek child support pursuant to Rule 1910.3 since he was granted primary legal and custody of the child on March 30, ·2001, an order which has not been amended. we also agree with the trial court's rationale in its decision to award support to Father. It reasoned the purpose 'of child support is to p~omote the child's best interest. [citation omitted]. The court determined an award of custody to father was in the child's. best interest, and therefore fatherTs attempts to regain custody of his daughter are in his best . interest. Those efforts are expensive. Moreover, father maintains a home for his daughter in the hopes mother will ultimately will comply with the court's order. Funds spent in these efforts, as with funds retained by father for the daughter's benefit, do in fact promote the daughter~s best interest. .
Seder v. Seder, 841 A.2d at 1077.
Here, Mother has the legal right to custody and thus has standing. The Court has determined by virtue of its opinion and order of court that it is in the child's best interest for · Mother to have the custody as Father is alienating the child from Mother. It would be absurd to conclude that Father can act in defiance of the court order granting custody to Mother and ~j :.o Jllf.llCIAL OISTR rc r then use that circumstance to avqid paying the child support that would follow from an award of custody to Mother .
..AW~£HC£ COUNTY PEH~:!"V LV!\ tl1A 5
Father has also appealed the March 3, 2014 order of this court which denied Father's Petition for Damages, the court finding that there was not a sufficierit nexus between the conduct of Plaintiff's prior counsel complained of and the amount of damages claimed. Father's concise Statement of Matters complained of on Appeal states that the court committed an abuse of discretion in fail.i ng to award damages to Father when Mother engaged in dilatory, obdurate or vexatious conduct by requesting that the support matter be deemed complex for discovery without need, then failing to engage in said discovery, failing to give timely notice to counsel and/or Father,~f the presentation of motions and continuing the matter unnecessarily.
The undersigned judge was not the judge to whom the Petition for Damages was presented nor has this judge heard any argument nor presided over any hearing on the motion. This mo t ion was originally presented to the Honorable Eugene E. Fike, II, who subsequently recused himself from this case and the related custody .case because one of the par-t ies filed a lawsuit agairst him in Federal court. This case was subsequently reassigned to the Honorable Tftomas M. Pic'cione, who provided· over various proceedings in this case including the ultimate issue o~ a support order, but the Petition for Damages was not reso 1 ved before Judge Piccione, who subsequently was required to take a medical leave, thus causing this case to be reassigned to this judge. The parties agreed that the undersigned could !> JRC\ JUDICl/\1.. DISTRICT decide the Petition for Damages based upon the record as it presently exists.
0..AWR ENC:ls CC>Uli'TY Pl11'HIS 'IL VANIA 6
The record reflects that Father filed a "Motion to Dismiss supplemental support Hearing scheduled for July 30, 2012, and to Impose Sanctions, Attorney Fees and Damages, and Prohibit the Filing of Findings of Fact, ConclusiQns of Law and Proposed order of court." In that motion, Father averred that he is entitled to attorneys fees in the amount of $5, 000. 00. That motion was heard before Judge Fike on July 26, 2012. Relative to the is sue of sanctions, .Judge Fike stated that the i mpos i ti on of sanctions would be evaluated at a hearing scheduled for July 30, 2012, (Notes of Testimony, July 26, 2012, p. 38).
On July 27, 20121 Judge Fike issued an order stating that upon consideration of Plaintiff's Motion·to withdraw Request for supplemental Hearing and cancel Hearing, that th~ Motion to Withdraw Request for supplemental Hearing an~ cancel Hearing is granted and the hearing scheduled for July 301 2012 before senior ~udge Eugene Fike is cancelled. The Otder farther provided that counsel for the Defendant would have until August 13~ 2012 to file a memorandum, ir desired, regarding Defendant's Request for Sanctions, Attorneys Fees.. and Damages and that Plaintiff's counsel would have until August 23, 2012 to file a response, if desired.
The parties were before Judge Fike on August 10, 2012
i
1.
arguing·Father's Motion to Quash Mother s Petition for
1
Modification. In the course of that argument Father argued that I
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the actions of counse 1 for Mother were dilatory and that Father had incurred counsel fees in excess of $101000.00. counsel for "'-1HO JIH~re !I', I. DC$fR!CT Mother disputed the statements of co~nse l for Father. No ·
evidence was taken on the issue of sanctions. At page 34 of the ·-AWR,r.1 ...'""t:: coUNTV PE:tlll; •/ LV A, M II\ 7
Notes of Testimony of that proceeding held on August 10, 2012 counsel for Father references that sanctions and counsel fees due to the conduct of the Plaintiff/Mother and counsel will "be presented Monday in my petition. 11
on August 13, 20121 Father f i l ed his Petition for Damages requesting counsel fees in the amount of $21,118.00.
on or about August . -23, 2012-, Mother filed an Answer' to the Petition for Damages denying al1 critical issues. of f~ct alleged on the Petition for Damages and setting forth new matter.
on August 29, 2012, Judge Fike issued an order setting forth that having been named, with other persons, including Defendant's counsel, as defendant in a civil suit filed by Plaintiff that to avoid the 'appearance of tmproprtety 1 or a conflict of interest, the undersigned (Judge Fike) recuses himself from further proceedings in the above captioned action. No fu rt tier proceeding was held on the issue of sanctions until Father filed a Motion for special Relief requesting that this court enter an order based on the existing record as to Father's Petition for Damages.
Th~ right of participants to receive counsel fees under the circumstances here alleged is set forth in 42 Pa.c.s.A. §2503(7;. The statute provides, in enumerating participants who shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter, the following:
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conauct during the pendency of S .1110 JU DIC!.'\ L a matter.
Of~':'RICT
.. A \'/REN L";f'. c:ouN'r"'f l>EN11·r~1.v.<.MIA 8
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It is only where the facts necessar~ for a trial court to I find dilatory conduct on the part of litigants are admitted and undisputed that the court can award attorneys' fees· without an evidentiary hearing. Kulp v. Hrivnak, 765 A.2d 796 (Pa.Super~ 2000). In or-der to warrant an award of counsel fees as a sanction for conduct that is alleged to be arbitrary and vexatious1 the petition or proceeding brought that is challenged . . . .
asbe+no vexatious ~r. arbitrary must be -who l ly without legal or factual grounds and not simply an argument raised that was determined by the court to be without merit. In Re: Barnes F·oundation, 74 A.3d 129 (Pa . super. 2013), appeal denied 80 A.3d 774. It +s also held that conduct is "d i l ator-y" as would warrant an award attorneys' fees as a sanction, where the record denons trat e that counsel di splayed a 'lack of diligence that delay proceedings unnecessarily and caused additional legal work. In Re: Estate of Burqer1 852 A.2d 385 (Pa.super. 2004), affirmed 898 A.2d 547, 587 Pa. 164.
Father alleges numerous fillings and actions taken by counsel for Mother which Father contends constitute dilatory, obdurate and vexatious conduct. However, each of these matters were addressed by the judge assigned to the case at the time without any finding t hat such counsel had engaged in any such conduct or that the action taken was without a legitimate arguable basis. Mother's Answer to the Petition for oamages each of the allegations and asserts that the actions were reasonahle or necessary and that in fact counsel for Mother had I actually prevailed on ~any of the issues put before the Court ~iRo JU tllCf:\ I. 01:;TR!CT
that Father contends constitute dilatory actions. As to the f.AWREN't!£ COUNT'( PENNS 'f L V.•\ ;,,(f,r,. 9 matters relating to the December 28 and December 29, 2011 as alleged in Paragraphs 90 and 91 of the Petition for Damages, counsel for Mother asserts that these matters were previously litigated before the court, specifically the averments of Paragraph 91, and such averments were found to be unsubstantiated and lacking merit. Attached to the Answer of Mother to the Petition for Damages is a copy of Order of Court dated February 15, 2012 of Judge Fike finding "insuffi c+ent evidence of intent to harass, cause unnecessary delay or increase the cost of litigation, or that motions were filed for an improper purpose, and having found insufficient evidence of willfu] and intentional actions constituting obdurate vexatious or dilatory conduct;" such Order bearing a filing ~tamp of February 17, 2012. Further, by order dated March·2, 2012, the court qrant ed Mother's Motion to Certify the case as complex, which is the very action that, in part, Father asserts to be dilatory. The court cannot from this record conclude that there is no basis for such motion, +n any event, 'the court granted the motion after hearing the arguments.of counsel relative thereto.
In terms of actual damages caused by any alleged dilatory, vexatious or obdurate conduct, the only evidence that has been submitted is an exhibit attached to the Petition for Damages containing an itemized list of services performed. The court cannot view the items on the list, and without testimony, draw a nexus between the items claimed as damages and any specific conduct of the Defendant which the· court could conclude to have 5'1~o JU PIC IP. L ot<:l1'R rc r been· dilatory, vexatious or obdurate. Furthermore, the court cannot determine the reasonableness of the fees nor the -A.WA'E"M.:E COUN"l·-y PENH!.'/ LV.i1N/A 10 necessity for the time expended. Additionally, some of the expenses were incurred prior to February 15, 2012, the date on which Judge Fike found insufficient evidence as to the previous motion for sanctions.
In short, r~lative to Father's Petition for Damages, there simply exists an insufficient record for the Court to make a determination that; the fees expended related to any improper conduct of counsel that would fall within the ambit of 42 . Pa.c.s.A. §2503(7). No hearing was held to address the Father's allegations, and the allegations were answered, with new matter having be~n raised, which inswer raised factual issues as to the Father's claim for Damages.
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