J-A30034-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.L.P.,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
R.F.P.,
Appellant
No. 1524 EDA 2013
Appeal from the Order entered May 17, 2013,
in the Court of Common Pleas of Philadelphia County,
Domestic Relations, at No: 0C1000744
BEFORE: FORD ELLIOTT, P.J.E., WECHT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.:
FILED MARCH 07, 2014
R.F.P. (“Father”), an attorney, filed the instant pro se appeal from the
trial court’s May 17, 2013 Custody Order (“the 2013 Custody Order), which
modified a prior Custody Order. The prior Order implemented an agreement
between Father and T.L.P. (“Mother), with regard to the shared custody of
the parties’ three children, R.P. (born in March 2005), S.P. (born in May
2006), and E.P. (born in June 2008) (collectively, “the Children”). The 2013
Custody Order granted Mother’s Petition to Modify a prior Custody Order
(“the 2011 Order”), but denied Mother’s Petition to find Father in contempt
of the prior order.1 We affirm.
The trial court set forth the relevant history underlying the instant
appeal as follows:
1
See N.T, 5/17/13, at 83-85.
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The present custody case was initiated on April 16, 2010, at
which time Mother filed a [C]omplaint for primary physical and
joint legal custody of [the Children] as part of her [D]ivorce
[C]omplaint. On May 25, 2010, Mother withdrew her [D]ivorce
[C]omplaint, which was resolved by a private agreement. Father
then filed a [C]omplaint for primary physical and legal custody
[of the Children] along with a [M]otion for [E]xpedited [R]elief
on October 25, 2010. On October 29, 2010, the Honorable Nina
Wright Padilla entered a temporary [O]rder by agreement
awarding the parties shared physical and legal custody [of the
Children].
On December 10, 2010, Mother again filed a [C]omplaint
to [C]onfirm [C]ustody as part of her new [D]ivorce
[C]omplaint…. A hearing was held[,] on June 7, 2011[,] on
Father’s [and Mother’s respective custody complaints. On June
7, 2011, the trial court entered the 2011 Custody Order, as
agreed to by the parties,] granting the parties shared physical
and legal custody [of the Children].
On October 22, 2012, Mother filed a [P]etition for
[C]ontempt[,] and[,] on November 5, 2012, Mother filed a
[M]otion for [E]xpedited [R]elief. The Honorable Holly Ford
granted a Rule to Show Cause on Mother’s [Motion] for
[E]xpedited [R]elief on November 20, 2012. On December 4,
2012, Father filed his [A]nswer to Mother’s contempt [P]etition.
Mother then filed a [P]etition to [M]odify [the June 7, 2011
custody Order] on December 12, 2012. On December 27, 2012,
Father filed an [A]swer to Mother’s [P]etition for [E]xpedited
[R]elief.
After a hearing on January 30, 2013, Mother’s
[P]etition for [E]xpedited [R]elief was denied[,] and this [c]ourt
ruled that the [2011 Custody Order] was to remain in effect.
Trial Court Opinion, 6/28/13, at 1-2.
The trial court conducted a hearing on the parties’ respective Custody
Complaints on May 17, 2013.
At the close of that hearing, the parties
reached an agreed-upon resolution of the dispute. As a result, the trial court
entered the 2013 Custody Order, which continued the parties’ shared
physical and legal custody of the Children. The 2013 Custody Order included
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a detailed holiday custody schedule, and addressed counseling matters,
communication between the parties, and their attendance at extracurricular
events. The 2013 Custody Order denied Mother’s Petition for Contempt, but
ordered Father to pay $500 in counsel fees to Mother’s attorney.
Father timely filed a Notice of Appeal, along with a Concise Statement
of Errors Complained of on Appeal. On appeal, Father raises the following
issues for our review:
I. Whether the court below denied [F]ather due process by
refusing to give him a full an[d] fair hearing?
[II.] Whether the court erred by granting relief on a claim
[Mother] raised for the first time at the bar of the court[, which]
was not raised in any of her three petitions, thus subjecting
[F]ather to trial by ambush and denying him due process?
[III.] Whether the court erred by sua sponte modifying a term of
the negotiated custody agreement where the record
demonstrated that such modification would be antithetical to the
best interest[s] of the [C]hildren?
[IV.] Whether the custody court erred by impermissibly relying
on its own personal beliefs with respect to parental
communication and ignored the law requiring only a “minimum
of communication” between custodial parties by requiring
excessive contact [between] the parties that inures to the
detriment of the best interests of the [C]hildren?
[V.] Whether the court erred in awarding [Mother’s] counsel
$500.00 in fees where it failed to conduct any fact-specific
analysis?
VI. Whether the court erred by permitting [Mother] to introduce
inadmissible double hearsay?
VII. Whether the court erred by sua sponte requiring additional
counseling for both parties where none was requested, and
where [Mother’s] own testimony demonstrated that both parties
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had already satisfactorily complied with the
requirement they had themselves negotiated?
co-parenting
Father’s Brief at 3-4 (issues renumbered).
In custody modification cases, our standard of review is as follows:2
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 an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
C.R.F., 45 A.3d at 443 (citation omitted).
As this Court has explained,
“[t]he 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.”
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation
omitted).
2
As the hearing in this matter was held in May 2013, the Child Custody Act
(“Act”), 23 Pa.C.S.A. §§ 5321-5340, is applicable. C.R.F. v. S.E.F., 45 A.3d
441, 445 (Pa. Super. 2012) (holding that, if the custody evidentiary
proceeding commences on or after the effective date of the Act, i.e., January
24, 2011, the provisions of the Act apply).
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In contempt proceedings, this Court is “limited to determining whether
the trial court committed a clear abuse of discretion.” P.H.D. v. R.R.D., 56
A.3d 702, 706 (Pa. Super. 2012).
contempts against its process.
“Each court is the exclusive judge of
The contempt power is essential to the
preservation of the court’s authority and prevents the administration of
justice from failing into disrepute.” Garr v. Peters, 773 A.2d 183, 189 (Pa.
Super. 2001).
Father’s first two claims assert violations of his constitutional right to
due process. Father first claims that he was denied his constitutional right
to due process at the May 17, 2013 hearing. Brief for Appellant at 20, 70.
Father contends that the trial court precluded him, “an abused spouse,” from
presenting any “case-in-chief in his own defense” of the contempt Petition.
Id. at 20. On this basis, Father asserts, the Order modifying custody should
be vacated, and the terms of the June 7, 2011 Order reinstated. Id.
In his second claim, Father asserts that the trial court conducted a
hearing on Mother’s Petition for Contempt on January 30, 2013, after which
it denied Mother’s Petition. Id. at 72. According to Father, at the May 17,
2013 hearing, the trial court entertained Mother’s first allegation of contempt
as to daughter E.P. and prevented Father from presenting his case-in-chief.
Id. 73.
Father contends that the trial court then granted Mother relief,
based upon her new claim of contempt. Id.
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Procedural due process requires, at its core, adequate notice,
opportunity to be heard, and the chance to defend oneself before a fair and
impartial tribunal having jurisdiction over the case. Garr, 773 A.2d at 191.
“Notice, in our adversarial process, ensures that each party is
provided adequate opportunity to prepare and thereafter
properly advocate its position, ultimately exposing all relevant
factors from which the finder of fact may make an informed
judgment.”
P.H.D., 56 A.3d at 707 (quoting Choplosky v. Choplosky, 584 A.2d 340,
342 (1990)).
Our review of the record discloses that Mother filed her Petition for
Contempt on October 19, 2012. Petition for Contempt, 10/19/12. Mother
filed a Motion for Expedited Relief on her Contempt Petition on October 22,
2012. On December 4, 2012, Father filed a Response to Mother’s Petition
for Contempt. Response to Petition for Contempt, 12/4/12.
On December 12, 2012, Mother filed her Petition to Modify Custody.
In her Petition to Modify Custody, Mother pointed out that the trial court had
scheduled a hearing on her Contempt Petition for May 17, 2013. Petition to
Modify Custody, 12/12/12, at ¶ 4.
Father filed an Answer to Mother’s
Motion to Modify Custody. Answer to Motion in Custody, 12/27/12.
On January 30, 2013, the trial court conducted a hearing on Mother’s
Motion for Expedited Relief.
After that hearing, the trial court denied
Mother’s Motion for Expedited Relief. Trial Court Order, 1/30/13. Contrary
to Father’s assertions, the trial court did not rule on Mother’s Petition for
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Contempt at the close of the January 30, 2013 hearing. Further, the trial
court did not rule on Mother’s Petition to Modify Custody, or enter a final
custody order.
At the May 17, 2013 hearing, Father had an opportunity to be heard
on Mother’s contempt Petition and the issue of modification of custody.
N.T., 5/17/13, at 57-82. At the end of the hearing, the parties reached an
agreement as to modification of the Custody Order, and the trial court
denied Mother’s Petition for Contempt. Id. at 87-94.
Thus, the record reflects that Father had notice that the May 17, 2013
hearing would address Mother’s contempt Petition and Petition to Modify
Custody.
At that hearing, Father testified on his own behalf.
Finally, the
parties resolved their differences by agreement. On this basis, we conclude
that Father’s first and second claims, averring a violation of his right to due
process, are without support in the record.
Accordingly, Father is not
entitled to relief on these claims.
In his third claim, Father argues that the trial court erred by sua
sponte modifying the terms of the June 7, 2011 Custody Order, and limiting
Father’s presence at the Children’s school. Brief for Appellant at 35. Once
again, Father asserts that the trial court conducted a hearing on Mother’s
Petition to Modify Custody on January 30, 2013, and denied Mother’s
Petition.
Id. at 40.
According to Father, the trial court’s subsequent
modification of custody was “neither based on a full and fair hearing that
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permitted the presentation of evidence by both parties[,] nor a fair and
rational consideration of the evidence.”
Id. (emphasis in original).
Upon
review of the record, we disagree.
As set forth above, the trial court’s January 30, 2013 Order denied
Mother’s Motion for Expedited Relief. Trial Court Order, 1/30/13. Contrary
to Father’s claim, the trial court did not enter a final custody order, or rule
on Mother’s Petition for Modification of Custody in its January 30, 2013
Order. Further, our review of the Notes of Testimony of the May 17, 2013
hearing reflect that both parties agreed to the modification, and raised no
objections to the modification. N.T., 5/17/13, at 87-94; see also Trial Court
Opinion, 6/28/13, at 2. Because there is no support for Father’s claim of a
sua sponte modification of the June 7, 2011 Custody Order, we cannot grant
him relief on this claim.
In his fourth claim of error, Father argues that the trial court
impermissibly relied on its personal beliefs with respect to parental
communication, when it issued an order requiring excessive contact between
Father and Mother. Brief for Appellant at 43. Father asserts that “[b]ecause
the excessive contact ordered by the court imposes a higher standard than
that required by law,” it is unduly burdensome and contrary to the best
interests of the Children. Id.
As set forth above, Father did not object to the purported “excessive
communication,” and the parties agreed to a modification of custody. N.T.,
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5/17/13, at 87-94. It is axiomatic that claims that were not raised in the
trial court may not be raised for the first time on appeal. Pa.R.A.P. 302(a);
Jahanshahi v. Centura Dev. Co., Inc., 816 A.2d 1179, 1189 (Pa. Super.
2003).
Accordingly, Father’s claim is not preserved for our review.
See
Pa.R.A.P. 302(a); Jahanshahi, 816 A.2d at 1189.
In his fifth claim of error, Father asserts that the trial court erred in
awarding Mother’s counsel $500 in fees. Brief for Appellant at 57. Father
claims that, because the trial court failed to conduct a full and fair hearing,
denied him an opportunity to present his case, and foreclosed any factspecific analysis, it erred in awarding counsel fees to Mother. Id.
As discussed above, the trial court afforded Father a full and fair
hearing at which Father testified on his own behalf. Mother’s Petitions were
resolved by the agreement of the parties, and Father raised no objection to
the imposition of counsel fees.
N.T., 5/17/13, at 85-86.
Therefore, we
could deem Father’s claim waived. See Pa.R.A.P. 302(a); Jahanshahi, 816
A.2d at 1189. Regardless, our review of the record discloses that Father’s
claim lacks merit.
Our review of an award for counsel fees “is limited to solely
determining whether the trial court palpably abused its discretion in making
the fee award.” Kulp v. Hrivnak, 765 A.2d 796, 799 (Pa. Super. 2000)
(affirming a trial court’s sua sponte award).
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Contrary to Father’s assertions, the trial court did not impose counsel
fees sua sponte. In her Petition for Contempt, Mother requested that Father
pay “reasonable attorney’s fees to [] Mother’s counsel.”
Contempt, 10/22/12, at 3 (unnumbered).
Petition for
In its Opinion, the trial court
explained its imposition of counsel fees as follows:
Under the Pennsylvania custody statute, 23 Pa.C.S.[A.] § 5339,
“a court may award reasonable interim or final counsel fees … to
a party if the court finds that the conduct of another party was
obdurate, vexatious, repetitive or in bad faith.” See also 42
Pa.C.S.[A.] 2503(7).
In the present case, pursuant to the June 7, 2011 Order,
the non-custodial party was to have two hours with the
[C]hildren on each of their birthdays and on Halloween “by
written agreement of the parties.” Order dated 6/7/11. The
parties were also ordered to set up separate email[] accounts to
be used solely for custodial issues. At the hearing on May 17,
2013, it was clearly established that Father intentionally ignored
Mother’s continued attempts to arrange via email a birthday and
Halloween visit. (See N.T.[, 5/17/13, at 8, 10, 15]). Father
testified that he failed to respond to Mother’s emails because he
did not consider an agreement reached through email to be a
“written agreement”[, id. at 58, 61], despite the [] 2011 Order’s
specific provision that email communication would be considered
evidence at future custody proceedings and that “any change in
custody must be confirmed through e[]mail.”
Order dated
6/7/11.
[The trial] court found that in ignoring Mother’s emails
regarding pertinent custody issues, Father acted in bad faith and
demonstrated [a] total disregard for the custody [O]rder.
Father’s vexatious disobedience caused Mother to incur
attorney’s fees for the necessity of bringing the instant
proceeding. According, Father was ordered to pay counsel fees
in the amount of $500 to Mother’s attorney.
Trial Court Opinion, 6/28/13, at 6-7 (citations to Notes of Testimony in
original).
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The record supports the trial court’s determination, and we discern no
error or abuse of discretion in this regard. Accordingly, we adopt the trial
court’s reasoning addressing Father’s claim, as set forth above, and affirm
on this basis. See id.
In his sixth claim, Father argues that the trial court erred by admitting
email correspondence as evidence at the May 17, 2013 hearing.
Brief for
Appellant at 28. Father argues that the emails were inadmissible hearsay,
and that the trial court improperly relied on these emails in granting relief
against Father. Id.
The Notes of Testimony of the May 30, 2013 hearing disclose that the
emails were offered as evidence of Mother’s allegations of contempt against
Father.
See, e.g., N.T., 5/30/13, at 15 (wherein Mother identifies emails
demonstrating her attempts to schedule co-parenting counseling), 18-28
(wherein Mother identifies emails following alleged disparaging comments
made about her to the Children).
However, we must conclude that any
errors committed by the trial court in admitting the emails was harmless,
and caused no prejudice to Father. Father was not found to be in contempt,
and the parties agreed to the modification of custody. Accordingly, Father is
not entitled to relief on this claim.
Finally, Father claims that the trial court improperly required both
parties to attend additional counseling.
Brief for Appellant at 88.
Father
asserts that neither party requested additional counseling, and that both
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parties already had complied with the counseling requirements set forth in
the June 7, 2011 Order. Id.
As set forth above, the Notes of Testimony of the May 17, 2013 reflect
that, at the close of the hearing, the parties had resolved Mother’s Petitions
by agreement.
N.T., 5/17/13, at 84.
Counsel for Father stated, on the
record, the parties’ stipulation that Father had completed “the other required
courses[.]” Id. In reviewing the requirements agreed to by the parties, the
trial court stated the following:
[The court is] going to indicate that [F]ather is to arrange coparenting counseling with [M]other and [F]ather within 30 days
of today’s date, through counsel, through his insurance. The
counselor is to—at their [sic] sole discretion, is to determine
whether [M]other and [F]ather go together or separately, and I
put that in an order already. Co-pays are going to be equally
divided.
N.T., 5/17/13, at 88-89.
Father at no time objected to the trial court’s
summary of the requirements agreed to by the parties. See id. Therefore,
this claim is not preserved for our review.
See Pa.R.A.P. 302(a);
Jahanshahi, 816 A.2d at 1189.
For all of the above-stated reasons, we affirm the Order of the trial
court.3
Petition denied; Order affirmed.
3
On November 14, 2013, Father filed a Petition for Permission to File PostSubmission Communication Pursuant to Pa.R.A.P. 2501(a), asserting that
the panel did not appear to apprehend his argument and the prejudice that
he suffered from the trial court’s order at Oral argument. We have carefully
reviewed the record, and we assure Father that we fully apprehend his
argument. Thus, we deny his Petition.
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Wecht, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2014
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