M.G. v. S.J.

• Court: Superior Court of Pennsylvania
• Decided: January 30, 2017
• Docket: 1182 WDA 2016
• Status: Unpublished

Opinion

J-S96029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.G. IN THE SUPERIOR COURT OF PENNSYLVANIA v.

S.J.

Appellant No. 1182 WDA 2016

Appeal from the Order July 13, 2016 In the Court of Common Pleas of Allegheny County Civil Division at No(s): FD-07-009307-004

BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.: FILED JANUARY 30, 2017

S.J. (“Father”) appeals pro se from the July 13, 2016 order denying his

petition for contempt and awarding M.G. (“Mother”) $1,000 in attorneys’

fees that she incurred defending herself from the unjustified petition. 1 We

affirm.

Mother and Father married on February 5, 1994, separated in 2007,

and divorced on April 13, 2010. This custody litigation has a long and

____________________________________________

1 The appeal is properly before this Court. An order denying a petition for contempt of a prior final order is appealable. Cf. Schultz v. Schultz, 70 A.3d 826, 828 (Pa.Super. 2013) (order refusing to find husband in contempt of interlocutory order regarding marital property was not appealable because equitable distribution and divorce remained unresolved). Instantly, Father claims that Mother violated certain provisions of the final custody order entered on January 21, 2016. Hence, the order denying the petition for contempt is appealable. J-S96029-16

tedious history, and Father’s unsuccessful appeals to this Court are myriad.

Pursuant to the most recent custody order entered on January 21, 2016,

Mother maintains sole legal custody and primary physical custody of the

parties’ now-sixteen-year-old daughter, Su.J. Father exercises periods of

partial custody. As it relates to this appeal, Mother’s legal custody was

subject to certain limitations, including seeking Husband’s input on

educational matters and when scheduling extracurricular activities.

However, if an agreement could not be reached, Mother retained sole

authority over those decisions.

The pertinent facts follow. During summer 2016, Mother desired to

send Su.J. to summer enrichment programs at Cornell University and Brown

University. Mindful of Father’s litigiousness, Mother filed a petition for

special relief seeking the trial court’s express authorization to enroll Su.J. in

the programs notwithstanding her legal authority to act unilaterally. The

petition stated that Mother reached out to Father, and that while he did not

object to his daughter’s participation in either program, he refused to

contribute to the cost of attendance. Mother’s petition also requested

permission to take Su.J. on a five-day college tour during Spring 2017.

Father responded to the petition by objecting to both of Mother’s

entreaties and leveling allegations of contempt based upon Mother’s alleged

use of Su.J. as an intermediary, failing to address him with respect, and

neglecting to utilize the Our Family Wizard communication and scheduling

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system as required by the January 21, 2016 custody order. On June 9,

2016, the trial court granted all three aspects of Mother’s requests for relief,

summarily rejected Father’s assertions of contempt, and concluded that the

programs’ expenses would be paid consistent with the extracurricular-

activity provision in the governing child support order. The court denied

Father’s ensuring “Emergency petition for reconsideration,” which leveled

additional allegations of contempt.

Undaunted by the Court’s prior renunciation of his contempt

allegations, on July 18, 2016, Father filed yet another contempt petition

against Mother. That petition, which is the genesis of the instant appeal,

assailed Mother for, inter alia, traveling to Deep Creek, Maryland with Su.J.

on an undisclosed date, continuing to use the child as an intermediary, and

misleading the court about the child’s desire to attend the summer

enrichment programs. Mother countered with a request for legal fees. On

July 13, 2016, the trial court denied the petition and awarded Mother $1,000

for attorney fees. This timely appeal followed.

Father raised six prolix claims for review, which we restate as three

succinct issues: (1) Whether the trial court committed an abuse of discretion

in denying Father’s petition for contempt and in finding that the summer

enrichment programs were educational activities subject to Mother’s decision

when the record demonstrates that Mother lied to the court about the

relevant custody arrangements and misstated Su.J.’s desire to attend

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summer camp; (2) Whether the trial court abused its discretion in awarding

attorneys’ fees based upon Father’s obdurate and vexatious behavior; and

(3) Whether the trial court’s decision is the product of partiality, bias, and ill

will. See Father’s brief at 3-4.

We review an order denying a petition for civil contempt for an abuse

of discretion. Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009).

An abuse of discretion is tantamount to a misapplication of law or an

unreasonable exercise of judgment. Id. As we have explained, “[w]hen

reviewing an appeal from a contempt order, the [appellate] court must place

great reliance upon the discretion of the trial judge. Id. at 1235 (quoting

Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001)).

In relation to Father’s specific allegations of contempt regarding

Mother’s failure to comply with the January 21, 2016 custody order, the

petitioning party has the burden of proving noncompliance by a

preponderance of the evidence. MacDougall v. MacDougall, 49 A.3d 890,

892 (Pa.Super. 2012). Accordingly, herein, Father had the burden of

proving that: (1) Mother had notice of the specific order or decree that she

is alleged to have disobeyed; (2) her violation was volitional; and (3) she

acted with wrongful intent. See Harcar, supra at 1234.

Concerning Father’s assertions that the court erred in accepting

Mother’s testimony when it was rife with lies, we observe, “this Court defers

to the credibility determinations of the trial court with regard to the

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witnesses who appeared before it, as that court has had the opportunity to

observe their demeanor.” Garr, supra at 189. As long as the certified

record supports the trial court's credibility determination, we will not disturb

it. Harcar, supra at 1236.

Father’s second issue challenges the assessment of counsel fees. The

Child Custody Law provides, “a court may award reasonable interim or final

counsel fees, costs and expenses to a party if the court finds that the

conduct of another party was obdurate, vexatious, repetitive or in bad faith.”

23 Pa.C.S. § 5339. Similar to our examination of Husband’s first set of

issues, we will not alter an award of counsel fees absent an abuse of

discretion. See A.L.-S. v. B.S., 117 A.3d 352, 361 (Pa.Super. 2015). In

this context, “[a] trial court has abused its discretion if it failed to follow

proper legal procedures or misapplied the law.” Id.

Finally, in relation to Father’s claim that the trial court demonstrated

bias, partiality, and ill-will, we previously reiterated in In re S.H., 879 A.2d

802, 808 (Pa.Super. 2005), that a mere adverse ruling, without more, does

not demonstrate bias. Likewise, as noted, supra, credibility determinations

are within the purview of the trial court as the ultimate arbiter of fact. Thus,

the fact that the trial court credited Mother’s testimony over Father’s is not

competent evidence of partiality, bias, or impropriety. See Garr, supra at

189; Harcar, supra at 1236.

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After a thorough review of the certified record, the parties’ briefs, and

the pertinent law, and following our examination of the Pa.R.A.P. 1925(a)

opinion that Judge Kathryn Hans-Greco entered on September 12, 2016, we

find that the trial court ably discussed the issues that Father asserted in this

appeal and adopt her reasoning as our own. Specifically, for the reasons

cogently explained in the trial court opinion, we conclude that the certified

record does not support Father’s allegations of contempt or his several

assertions that Mother lied to the court. Likewise, we agree with the trial

court’s conclusion that counsel fees were warranted in light of Father’s

persistent and repetitive iterations of patently frivolous grievances. We see

no evidence of trial court partiality, bias, or ill will.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30/2017

-6- Circulated 01 /20/2017 04:33 PM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION

M.G. (formerly M.J.),

Plaintiff, SEALED OPINION

v. No.: FD-07-09307-004 ll82WDA2016

S.J.,

Defendant. BY:

Honorable Kathryn Hens-Greco 440 Ross Street Suite 5077 Pittsburgh, PA 15219

COPIES TO:

Counsel for Plaintiff:

Mark B. Morrow, Esquire 429 Forbes A venue, Suite 909 Pittsburgh, PA 15219 - 1604

Pro Se Defendant:

S. J. 1605 Blackburn Heights Drive .ce Sewickley, PA 15143 0 < 0:: ::z 0..

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.. ' -u.. N c; w en .._0 o:i,~". o..s::u: U..::l: 0 ::! U.'. .-> .. s : u:, 0.0';j: --~-, ~ •,: IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION

Plaintiff, No.: FD-07-09307-004 1182 WDA 2016 V,

S.J .•

Defendant.

OPINION

HENS-GRECO, J. September 12, 2016

In this matter, S.J. ("Father"), prose, appeals this Court's Orders of July 13, 2016, which

denied his request for a hearing on his contempt petition, but granted the request of M.G.

("Mother") for an award of attorney fees in the amount of $1,000.00 (One Thousand Doi Jars)

upon finding Father's petition to constitute obdurate and vexatious behavior. Father appeals.

I. PROCEDURAL POSTURE

The parties are parents to 15-year-old daughter Su.J.; the parties older son has long since

reached majority age. Custody litigation has been regular since this case's inception in 2007. A

cursory review of the docket reveals approximately 20 appellant cases before the Superior Court,

all but a few of them belonging to Father. He has never appealed successfully. At times. his

conduct has been so hostile that he has been sanctioned by this Court and by the Superior Court.

His animosity toward Mother was part of the reason this Court awarded Mother sole legal

custody in 2013, where recent history begins. See Order of Court, dated March 24, 2014. Father

unsuccessfully appealed this award. See 637 WDA 2014. In December 2015, this Court held another custody trial, this time on Father's petition for

modification. But Father refused to participate in the trial. A custody order was entered on

December 17, 2015. This Court entered clarification orders on January 21, 2016. Father

appealed this Court's custody orders. See 64 WDA 2016. This Court opined that Father's

appeal should be quashed given Father's defective notice of appeal and his failure to preserve the

issues. See this Court's Statement in Lieu of Opinion, docketed February 11, 2016. To date, the

Superior Court has not ruled.

But regardless of how the Superior Court ultimately rules, matters of legal custody have

remained unchanged since 2014. That is, whether the ultimate custody will be this Court's Order

of December 17, 2015 (as clarified by the order of January 21, 2016) the fact remains the same

that Mother has sole decision-making authority in matters regarding the child's educational and

extracurricular activity. See Final Custody Order of Court, dated January 21, 2016, at Section I,

Paragraph 2(b) ("If the parties cannot agree, Mother will have the sole authority to decide

whether to enroll [the childj in the (extracurricular) activity"); at Section I, Paragraph J(a) ("In

the event the parents cannot agree, Mother will have the sole authority for making educational

decisions for [the child.]"); see also Id., at l. The Court "adopts the legal custody orders as

outlined in the order of March 24, 2014 and as outlined in the second paragraph of the order of

June 26, 2014 (relating to medical decisions). They are reiterated below, verbatim."

Fast forward to Summer 2016. Mother brought a petition for special relief, wherein she

alleged that she sought to enroll the child in educational summer camps: one affiliated with

Cornell University (lasting about three weeks) and one with Brown University (lasting about 5

days). Mother also requested the ability to take the child on college tours from March 31 to

April 4, 2017. Mother had petitioned for the latter request after the Court had granted Father five

2 consecutive days to visit with relatives in town from Singapore. See Order of Court, dated June

9, 2016. The Court had awarded Father atypical custody time with the out-of-town relatives,

after the Court had granted Mother's previous request to take the child on a trip to the Galapagos

Islands. In her June 9111 petition, Mother clarified for the Court that the Galapagos trip was not a

special trip she took with the child, but rather a trip affiliated with the child's school. In any

event, the Court interpreted its custody order to mean that Mother did not need the Court's

permission to sign the child up for educational/extracurricular activities, even when those

activities occur on Father's time.

On July J 3, 2016, Father brought forth a lengthy petition for contempt. Mother

submitted a response and a new matter, asking for counsel fees. After hearing argument, this

Court denied Father's relief and granted Mother's request. Father appeals.

II. DISCUSSION

A. Contempt of Custody Order

Father alleges this Court en-eel in denying his request for a hearing to determine whether

Mother was in contempt of the January 21, 2016 custody order. See Father's Concise Statement,

at Paragraph I. Per 23 Pa.C.S.A. §5323(g), "[a] party who willfully fails to comply with any

custody order may, as prescribed by general rule, be adjudged in contempt." This Court denied

Father's request for a hearing on contempt, because the facts alleged during the motion, even if

true, did not prove that Mother willfully failed to comply with the custody order.

Father alleged that Mother violated Paragraph 13 of the January 21, 2016 custody order

outlining travel outside of Allegheny County. See Father's Petition for Contempt, at Paragraph 2.

The allegation is quite ridiculous. The Court has been aware for some time that Mother attends a

family reunion in Deep Creek, MD around the Fourth of July holiday. Father had even once

3 brought this issue to the Superior Court, arguing that Mother misled the Court in describing her

family get-together as a "family union." He argued that the gathering was not a family reunion

because the child had testified in camera that the family does not, in fact, have t-shirts made.

See 775 WDA 2011, Trial Court Opinion, at Footnote 3. This Court determined that Paragraph

13 was clearly meant to apply to general vacations or the special business trips on which Father

takes the child, and not the family reunion trip which has been the source of Father's litigation

since 2011.

Father alleged that Mother violated Paragraph 18 of the January 21, 2016 Custody Order,

which provides that the child shall be able to have regular phone contact with Father when in

Mother's custody. See Father's Petition for Contempt, at Paragraph 3. Father argued that it was

Mother's fault that she took the child to an area where there was no cell phone reception.

Clearly the custody provision was supposed to guard against one parent forbidding

communication with the other parent. That the 15-year-old child could not answer the call, or

would not answer the call, or do so in a timely fashion, does not mean that Mother willfully

failed to comply with the custody order.

Father alleged that Mother violated the custody order because she did not notify him, via the

Our Family Wizard computer program, that the child would be late entering his custody. See

Father's Petition for Contempt, at Paragraph 4. The child was returning from a school trip and

the flight was delayed. Father petitions for a contempt hearing, because Mother did not

memorialize the delayed flight on Our Family Wizard. This is not a violation of the custody

order.

4 Father alleged that Mother violated Paragraph 161 of the January 21, 2016 Custody Order,

which provides that the parents will endeavor to communicate with each other rather than using

the child as an intermediary. See Father's Petition for Contempt, at Paragraph 5. Such provisions

are common is custody orders, especially in cases where communication between the parents is

difficult. The provision seeks to prevent parents from placing undue burdens on children with

shared custody arrangements. Such might occur when a child is tasked with relaying the

intentions of one parent to the other. Here, Father claims that Mother forced the child to be a go-

between during the scheduling of the child's summer. Father did not speak to this point during

the presentation of his motion, and so the Court does not know precisely the alleged facts. But

the Court is familiar with the case and knows that as the child has matured, Mother has

encouraged the child to communicate directly to her Father when she wants him to know of her

requests and desires. In this context, Mother has encouraged the child to explain to her Father -

as opposed to using her Mother as the go-between - her desire to go to summer camp. This is

not the type of act the custody order seeks to prevent, and Mother is not in violation of the order.

Father alleged that Mother is in contempt for representing to the Court that the child wanted

to attend the summer camps when the child did not want to attend at all. See Father's Petition for

Contempt, at Paragraphs 6-7. The Court is not persuaded by Father's argument that the child

never wanted to go. Frankly, even if the child did not want to attend, it would be within

Mother's purview, per this Court's grant of legal custody, to sign the child up anyway. Though

no sworn testimony was taken, the Court was persuaded by Mother's representation that Father

put extreme pressure on the child to cancel the summer camps, or else he would refuse to

financially contribute to the child's education. Unfortunately, it would not be the first time

I Father's concise statement mistakenly cites Paragraph 13 (the vacation provision): he means Paragraph 16 (the communication between panics provision)

5 Father pressured the child until she submitted to his wishes. She testified in camera during the

December custody trial that Father refused to see or speak to her until she fired her appointed

attorney. In any event, the child decided not to attend the camps, which Father took as

opportunity to seek sanctions for Mother's "lie" that the child wanted to go in the first place.

Under no circumstance were Mother's act ions contemptuous.

B. False Statements

Father routinely faults this Court for its bias, and for believing Mother's lies. He has

previously (and unsuccessfully) brought these specific issues before the Superior Court. Often

times the Court is presented with diametrically-opposed versions of the events, often times

without a plethora of supporting evidence. That the Court has chosen to believe Mother's

version over Father's is neither evidence of the Court's bias nor Mother's perjury. Father's

Concise Statements regarding these matters are devoid of merit. See Father's Concise Statement,

at Paragraph 2-3; 5-6.

C. Counsel Fees

Per 23 Pa.C.S.A. §5339, "a court may award reasonable interim or final counsel fees, costs

and expenses to a party if the court finds that the conduct of another party was obdurate,

vexatious, repetitive or in bad faith." Father alleges this Court erred in awarding Mother counsel

fees. See Father's Concise Statement, at Paragraph 4. Father's July 13 contempt petition was his

third iteration of the grievances he had with summer camp and at least the second iteration of

those issues related to the Galapagos trip. See Orders of Court, dated June 9, 2016 and June 22,

2016. And even though this Court denied Father's requested relief then, he still brought

substantially the same matters back before the Court. And when all else foiled, Father alleged

contempt, citing infringements so slight that they did not even warrant a hearing on the merits.

6 In addition to Father's frivolous petitions, Father has engaged in an extremely vexatious manner.

He has purposefully pressured child to submit to his will or face punishment, even though this

Court explicitly awarded Mother greater legal custody due to this very type of behavior. An

award of $1,000 is appropriate given Mother's time and expense needed to defend against

Father's campaign.

III. CONCLUSION

For the reasons set forth above, Father's July 13, 2016 petition for contempt did not allege

sufficient facts to warrant a hearing on contempt. Father's other concise statements regarding

the Court's bias or Mother's lies are meritless. This Court's decision to award Mother counsel

fees was not an abuse of discretion. This Court's order of July 13, 2016 should be affirmed.

BY THE COURT: