The opinion
J-A22041-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
LINDSEY WALSH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JEFFERY BROWN : No. 593 WDA 2024
Appeal from the Order Entered April 23, 2024
In the Court of Common Pleas of Erie County Civil Division at No(s):
11195-2021
BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: October 25, 2024
Appellant, Lindsey Walsh (“Mother”), appeals from the order entered in
the Erie County Court of Common Pleas, which granted the petition for
contempt filed by Appellee, Jeffery Brown (“Father”). We affirm.
The relevant facts and procedural history of this appeal are as follows.
The parties married in September 2013. The parties have two minor children
(“Children”). S.B. was born in December 2014, and T.B. was born in February
2017. On June 8, 2021, Mother filed a divorce complaint. Mother filed a
separate custody complaint on August 5, 2021.
The trial court set forth the remaining procedural history of this appeal
in its opinion as follows:
In September of [2021], the parties agreed to a Temporary
Custody Order regarding their two children pending a
custody trial. The Temporary Order provided that “[o]n
non-school/daycare days, custody exchanges shall occur at
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10:00 a.m. at the Corry, Pennsylvania Walmart.” In
January of 2022, [Father] filed a contempt petition against
[Mother] claiming that [M]other violated the Temporary
Order by failing to transfer physical custody of the children
at the agreed upon time. The undersigned first became
involved in this case in February of 2022, while presiding
over the contempt hearing. This court ultimately denied
Father’s petition for contempt, finding “the terms and
conditions of the September 29, 2021 Custody Order [were]
not sufficiently clear to support a violation, nor [did] the
evidence presented at the hearing rise to the level of willful
conduct committed with wrongful intent.”
[Another jurist] presided over the custody trial, which
spanned the course of two days in September and October
of 2022. In the resulting Custody Order, [the court]
directed that “[u]nless mutually agreed otherwise, the
parties shall receive the Children for their periods of partial
physical custody directly from school or the school bus.
When school is not in session, custody exchanges shall occur
at a reasonable half-way point between Corry and
Titusville.” On the heels of the custody trial, in December
of 2022, [M]other brought her own contempt petition
against [F]ather, again centering around the exchange
issue. But [M]other eventually withdrew her petition, with
the parties instead opting to attempt mediation of the
reoccurring exchange problem. That mediation apparently
proved unsuccessful.
In August of 2023, [M]other filed a modification petition.
The parties agreed to have a hearing officer take evidence
on the request. The sole issue submitted for his
consideration was transportation and exchange of physical
custody. At the proceeding before the Hearing Officer,
[M]other testified that although her own mother had
assisted with transportation of the children in the past, her
mother was no longer willing to do so, and as such, she
requested that the receiving parent be responsible for
picking up and transporting the children. By contrast,
[F]ather proposed that exchanges occur at the Methodist
Church in Spartansburg, which was approximately 10
minutes from [F]ather’s residence and 20 minutes from
[M]other’s residence. At the conclusion of the proceeding,
the Hearing Officer recommended that “[t]he parents shall
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exchange physical custody of the children at the Methodist
Church in Spartansburg, Pennsylvania, unless mutually
agreed to do otherwise.” In his report, the Hearing Officer
explained that need for stability and continuity militated in
favor of Father’s proposed exchange location since the
children were accustomed to being dropped off at the
Spartansburg Methodist Church. The proximity of the
parties’ residence also favored [F]ather’s request given that
[M]other relocated to Titusville in Crawford County, while
[F]ather lived and worked in Erie County. As another
relevant factor, the Hearing Officer noted that “[F]ather’s
commute home from work is 45 minutes” and that
“[r]equiring [F]ather to then drive to Titusville after work
would be a safety risk for the children.” In the end, the
Hearing Officer concluded:
The children are accustomed to custody exchanges at
the church. Although, the church is farther from
[M]other’s home, the safety of the children is of
paramount concern. [M]other’s proposal would
require [F]ather to leave home early in the morning,
drive to work in Erie and then return home only to
drive to Titusville.
No exceptions were filed to the Hearing Officer’s
recommendations, and the Hearing Officer’s recommended
order was signed unaltered by [the custody trial jurist] on
November 20, 2023[(“the 2023 custody order”)].
On January 19, 2024, [F]ather filed another Petition for
Contempt against [M]other for her failure to exchange the
children with him at the Spartansburg Methodist Church at
5:00 p.m. on December 22, 2023 and January 15, 2024.
On both of those days the children were off from school,
necessitating that [M]other provide transportation to the
exchange location (as opposed to the children being
dropped off at that location by the school bus). An Amended
Petition for Contempt was filed on April 10, 2024, alleging
that [M]other again failed to exchange the children
consistent with the terms of the Custody Order on March 28,
2024.1 [M]other filed an Answer and New Matter on April
12, 2024, alleging that [F]ather failed to act in good faith in
not mutually agreeing to an alternate custody exchange on
those occasions and arguing that [F]ather’s conduct in filing
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the contempt petitions was obdurate, vexatious, and done
in bad faith….
1 There was testimony at the Contempt Hearing
suggesting the date may have actually been March 29,
2024.
A hearing on [F]ather’s Amended Petition for Contempt and
[M]other’s New Matter was held before the undersigned on
April 16, 2024. At the conclusion of the hearing, the court
found on the record that [F]ather’s conduct was neither
obdurate, vexatious, repetitive, nor done in bad faith. It
further found [M]other in contempt of the November 2023
Custody Order, and ordered her to pay $850.00 in counsel
fees to Father as a sanction for the contempt. An Order
followed on April 23, 2024.
(Trial Court Opinion, filed 6/4/24, at 1-4) (record citations omitted). On May
20, 2024, Mother timely filed a notice of appeal and concise statement of
matters complained of on appeal.
Mother now raises four issues for our review:
Whether the trial court committed an error of law and/or an
abuse of discretion when it found that Mother violated the
November 20, 2023, custody order willfully and with
wrongful intent and as such found her to be in contempt and
ordered sanctions.
Whether trial court committed an error of law and/or an
abuse of discretion when it found beyond a reasonable
doubt that Mother had the ability to comply with the custody
order.
Whether the trial court committed an error of law when it
found that the November 20, 2023 order was clear in its
terms and then modified the order.
Whether the trial court committed an error of law and/or an
abuse of discretion when denied Mother’s new matter.
(Mother’s Brief at 5-6).
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“In reviewing a trial court’s finding on a contempt petition, we are
limited to determining whether the trial court committed a clear abuse of
discretion. This Court must place great reliance on the sound discretion of the
trial [court] when reviewing an order of contempt.” Rogowski v. Kirven,
291 A.3d 50, 57 (Pa.Super. 2023) (internal citation and quotation marks
omitted).
Mother’s first two issues are related, and we address them together.
Mother does not dispute that she failed to produce Children for the custody
exchanges on the dates alleged in Father’s contempt petition. Mother insists,
however, that she did not possess the wrongful intent necessary to support a
finding of civil contempt. Mother emphasizes that she submitted evidence to
confirm that she was at work on the dates at issue, and Father did not object
to any of her evidence or offer testimony to the contrary. Mother maintains:
“To find that Mother acted wrongfully simply by going to work, particularly in
this case, as a nurse for a scheduled twelve-hour shift, is contrary to common
sense.” (Mother’s Brief at 16).
Citing the court’s comments from the contempt hearing, Mother also
posits that the court “found Mother had proven her affirmative defense of an
inability to comply” with the 2023 custody order. (Id. at 17) (citing N.T.
Contempt Hearing, 4/16/24, at 25). Mother contends that the court then
shifted the evidentiary burden back to Father to prove, beyond a reasonable
doubt, that Mother had the ability to comply with the terms of the order.
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Mother asserts that Father “woefully failed to meet this burden.” (Id. at 18).
Nevertheless, Mother complains that the court “then shifted the burden of
proof back on Mother to prove that she had no alternatives available to her
on these occasions for the custody exchanges.” (Id. at 19).
At the conclusion of the contempt hearing, the court found that Mother
had not exhausted all options to comply with the 2023 custody order. In
response, Mother argues that the court effectively relieved Father of his
burden of proof. Additionally, Mother advances that the court
made contradictory findings that Mother both established
her affirmative defense of an inability to comply with the
order … and then simultaneously found that Mother had the
ability to comply with the order because she failed to
exhaust all alternatives to comply with the order.
(Id. at 21). Based upon the foregoing, Mother concludes that Father failed to
prove that Mother acted with wrongful intent, and the court erred in finding
that Mother had the ability to comply with the 2023 custody order. We
disagree.
“To be in contempt, a party must have violated a court order, and the
complaining party must satisfy that burden by a preponderance of the
evidence.” Rogowski, supra at 57 (quoting J.M. v. K.W., 164 A.3d 1260,
1264 (Pa.Super. 2017)).
Specifically, the complainant must prove certain distinct
elements: (1) that the contemnor had notice of the specific
order or decree which he[, or she,] 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.
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Id. (quoting J.M., supra at 1264).
[W]hen making a determination regarding whether a
defendant acted with wrongful intent, the court should use
common sense and consider context, and wrongful intent
can be imputed to a defendant by virtue of the substantial
certainty that his [or her] actions will violate the court order.
Gross v. Mintz, 284 A.3d 479, 492-93 (Pa.Super. 2022), appeal denied, ___
Pa. ___, 293 A.3d 563 (2023) (quoting Commonwealth v. Reese, 156 A.3d
1250, 1258 (Pa.Super. 2017)).
“[A] mere showing of noncompliance with a court order, or even
misconduct, is never sufficient alone to prove civil contempt.” Habjan v.
Habjan, 73 A.3d 630, 637 (Pa.Super. 2013) (quoting Lachat v. Hinchcliffe,
769 A.2d 481, 488 (Pa.Super. 2001)).
If the alleged contemnor is unable to perform and has, in
good faith, attempted to comply with the court order, then
contempt is not proven. The contemnor has the burden to
prove the affirmative defense that he [or she] lacks the
ability to comply. The defense of impossibility of
performance is available to a party in a contempt proceeding
if the impossibility to perform is not due to the actions of
that party.
Thomas v. Thomas, 194 A.3d 220, 226 (Pa.Super. 2018) (internal citations
and quotation marks omitted). “To impose civil contempt the trial court must
be convinced beyond a reasonable doubt from the totality of evidence
presented that the contemnor has the present ability to comply with the
order.” In re Estate of DiSabato, 165 A.3d 987, 992-93 (Pa.Super. 2017)
(quoting Sinaiko v. Sinaiko, 664 A.2d 1005, 1009 (Pa.Super. 1995)).
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Instantly, the court expressly determined that Mother had the ability to
comply with the 2023 custody order:
First o[f] all, the court did not find that the children’s
grandmother was completely unavailable, as [M]other
suggested. No doubt, the grandmother has expressed her
desire to not be involved in the custody exchange on a
regular basis…. And [M]other offered a valid justification for
the grandmother not wanting to be involved on a continuing
basis, namely that she cares for her husband, who is a
disabled veteran, and because she takes turns with her
sisters caring for the children’s 93 year-old great
grandmother. But this does not mean that the grandmother
is totally unavailable as a backup to transport the children
on occasions when the children are off from school and
[M]other is working. [M]other insisted that the
grandmother [is] “not willing to drive. She doesn’t want any
part of the driving[,]” yet [F]ather persuasively pointed out
during cross-examination that the grandmother continues
to occasionally transport the children to family events, as
she did for a recent Easter egg hunt. Secondly, [M]other
failed to persuade the court that she had exhausted all
realistic and reasonable alternatives for ensuring the
children are transported to the church drop-off location on
time on days the children are not in school, including the
availability of other family members or trusted friends, or
the [feasibility] of hiring a babysitter or other paid help to
transport the children when their grandmother or [M]other’s
boyfriend is unable to do so.
(Trial Court Opinion at 7-8) (record citations omitted).
The court also determined that Mother violated the order with wrongful
intent:
[U]nder the wrongful intent element, [M]other knew, or
reasonably should have known, that her conduct was wrong.
When viewed in the historical context of this case, that
becomes apparent. [M]other was before the undersigned
on a contempt petition relating to the exchanges in early
2022; later that year the subject was again litigated before
Judge Walsh. The parties attempted to mediate the dispute
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without success and eventually returned in front of the
hearing officer, who was convened solely to resolve the
exchange issue. Unlike the petition brought under the
Temporary Order, [M]other could not claim that this
provision, requiring her to transport the children to the
Spartansburg Methodist Church at 5:00 p.m., was
ambiguous, so she could not argue that she in any away
misinterpreted or misunderstood the Custody Order. Nor
does the court find that she made a sufficiently good faith
attempt at compliance, for the reasons already discussed.
She simply defied what she perceived to be an unjust
requirement. That was patently wrongful.
(Id. at 9). Our review of the contempt hearing transcript supports the court’s
conclusions.
Regarding Mother’s purported defense, her cross-examination
testimony is dispositive. Initially, Mother claimed that Maternal Grandmother
is “not willing to” pick up Children at the church if Mother is at work during a
custody exchange period. (N.T. Contempt Hearing at 35). Mother
immediately conceded, however, that her “significant other has been at times
available to do that.” (Id.) Later, Mother qualified this testimony by stating
that her boyfriend is a doctor who “can’t leave the hospital at times. He’s not
a dependable driver.” (Id. at 37). Mother then testified that Children were
with Maternal Grandmother on the dates when Mother was at work during
custody exchange periods. Mother also explained that Maternal Grandmother
is a caregiver for other family members, and Mother “cannot force [Maternal
Grandmother] to drive.” (Id. at 37). Thereafter, the following exchange
occurred:
[COUNSEL:] [Maternal Grandmother’s] willing to drive to
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activities with the kids during your custody time if she’s
watching them?
[Mother:] She went to an Easter egg hunt at her
mother’s house with the family.
(Id. at 38). This testimony confirmed the court’s assertion that Maternal
Grandmother was not completely unwilling to drive Children on Mother’s
behalf. On this record, we cannot say that the court abused its discretion in
concluding that Mother failed to prove her inability to comply with the 2023
custody order. See Rogowski, supra; Thomas, supra.
Regarding Mother’s wrongful intent, Mother admitted that she was
scheduled to work on each of the dates for the custody exchanges at issue.
(See N.T. Contempt Hearing at 26). Mother also testified that she texted
Father in advance about her work schedule, but the parties did not reach an
agreement on an alternative solution for transporting Children to the
exchanges. (See id. at 29-32). This record left no doubt that wrongful intent
could be imputed to Mother. See Gross, supra.
To the extent Mother complains that the court made a contradictory
finding that Mother established the affirmative defense of impossibility, the
record does not support this claim. As the court noted in its opinion, it found
that Mother “put forward sufficient threshold evidence to raise the affirmative
defense of impossibility.” (Trial Court Opinion at 6) (emphasis added).
Nevertheless, based upon the aforementioned reasoning, “the court did not
credit [M]other’s claim of impossibility.” (Id. at 8). The court also provided
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the following analysis of the relevant burdens of proof:
[T]he case law describes impossibility as an affirmative
defense to be proven by the contemnor, yet also instructs
that the trial court must be convinced beyond a reasonable
doubt that the contemnor has the present ability to comply
with the order. While the case law does not specify who
bears the burden of production to demonstrate that the
alleged contemnor has the ability to comply, it would
naturally fall on the opposing party to put forward such
evidence. Thus, at the contempt hearing, the court
assumed [M]other had an initial burden to demonstrate
impossibility…. Finding that she had satisfied this initial
burden, the court then proceeded to consider whether it was
convinced beyond a reasonable doubt, based upon the
totality of the evidence presented [by] both parties, that
[M]other had the ability to comply with the Custody Order.
(Id. at 6-7 n.2) (internal citations omitted). Our review of the relevant cases
reveals that the court did not commit any legal error in evaluating the
evidence offered at the hearing. See Thomas, supra; Estate of DiSabato,
supra. Based upon the foregoing, we conclude that Mother is not entitled to
relief on her first two claims.
In her third issue, Mother contends that the trial court found the terms
of the 2023 custody order were clear. Mother complains, however, that the
court recognized that the 2023 custody order was not as clear as it should
have been, and the court subsequently entered an amended custody order
providing that “the parents shall be responsible for ensuring that the children
are exchanged at … the appropriate exchange time, unless mutually agreed
otherwise.” (Mother’s Brief at 24) (quoting Order, entered 4/23/24). “In so
making this amendment to the custody order, the trial court bootstrapped its
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finding that Mother was in contempt.” (Id.) Because the court ultimately
needed to issue an amended order, Mother concludes that the court
committed an error of law in finding that the terms of the 2023 custody order
were clear. We disagree.
“To be punished for contempt, a party must not only have violated a
clear 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.” Sutch v. Roxborough Memorial Hosp., 142 A.3d 38, 67
(Pa.Super. 2016), appeal denied, 640 Pa. 378, 163 A.3d 399 (2016)
(emphasis in original) (quoting Stahl v. Redcay, 897 A.2d 478, 489
(Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d 747 (2007)).
“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.” Id. (quoting Stahl, supra at 489)
Instantly, the 2023 custody order provided for custody exchanges as
follows: “Transportation for exchanges shall be as follows: The parents shall
exchange physical custody of the children at the Methodist Church in
Spartansburg, Pennsylvania, unless mutually agreed to do otherwise.”
(Order, filed 11/21/23, at ¶4(b)). In evaluating the terms of this order, the
trial court specifically addressed Mother’s argument as follows:
As best we can tell, [M]other contends that, in modifying
Paragraph 4(b), the court implicitly admitted the Custody
Order was not clear in its terms, despite its finding to the
contrary. But this argument is premised upon a false
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dichotomy. Just because the language of Paragraph 4(b)
could have been drafted more clearly does not mean that
the language is not sufficiently clear to support the charge
of contempt.
* * *
Here, there was no doubt or uncertainty regarding
[M]other’s obligation to ensure that the children be
exchanged at the Spartansburg Methodist Church at 5:00
p.m. Any ambiguity concerned whether [M]other was
required to personally transport the children, or whether she
could ensure compliance through third parties. [M]other
appears to have interpreted the provision to allow for
exchanges to occur through third parties,5 and the court did
not hold her to a stricter interpretation that would have
required she personally transport the children herself. In
any event, the Custody Order was unambiguously clear in
the term that the children were to be exchanged at the
Spartansburg Methodist Church at a particular time. It is
this command with which [M]other did not comply.
5 As already discussed, [M]other stressed that the
grandmother was completely unavailable to transport
the children on days they were not in school, a claim
we found to be incredible. If she had been under the
impression that she was required to personally
transport the children for every exchange, this point
would have had little relevance.
(Trial Court Opinion at 10-11) (emphasis in original). We agree that the
relevant provision within the 2023 custody order was definite, clear, and
specific, such that Mother could have no doubt or uncertainty as to the
prohibited conduct. See Sutch, supra. Therefore, Mother is not entitled to
relief on her third claim.
In her fourth issue, Mother reiterates the argument from the new matter
she filed on April 12, 2024. Mother claims that she gave Father advance notice
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of her inability to transport Children to the three custody exchanges at issue.
Mother complains that Father absolutely refused to work with her to make
alternate arrangements, which left Mother “in the position of having to choose
between going to work or complying with [the 2023 custody] order.”
(Mother’s Brief at 26).
While Mother acknowledges that Father has no legal
obligation to accommodate her work schedule and make
alternate arrangements for the exchanges, his then coming
into court on the basis that Mother violated the court order
when good faith attempts were made by Mother, in
advance, to avoid violation of the order, is obdurate,
vexatious and in bad faith.
(Id. at 26-27). On this basis, Mother concludes that the court should have
granted relief on her new matter by awarding her counsel fees. We disagree.
“Our standard of review of an award of counsel fees is well settled: we
will not disturb a trial court’s determination absent an abuse of discretion.”
A.L.-S. v. B.S., 117 A.3d 352, 361 (Pa.Super. 2015). The Domestic Relations
Code provides for an award of counsel fees under the following circumstances:
§ 5339. Award of counsel fees, costs and expenses
Under this chapter, 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. This section
may not apply if that party engaged the judicial process in
good faith to protect the child from harm.
23 Pa.C.S.A. § 5339.
“Obdurate” means “stubbornly persistent in wrongdoing.” Moyer v.
Leone, 260 A.3d 245, 252 n.6 (Pa.Super. 2021). “A suit is vexatious, such
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as would support an award of counsel fees, if it is brought without legal or
factual grounds and if the action served the sole purpose of causing
annoyance.” Dong Yuan Chen v. Saidi, 100 A.3d 587, 592 (Pa.Super.
2014). “Behavior that protracts litigation may nonetheless not rise to the level
of obdurate, vexatious and dilatory conduct within the meaning of the
statute.” Id. Further, an individual can be charged with filing a lawsuit in
“bad faith” if he filed the suit for purposes of fraud, dishonesty, or corruption.
See Moyer, supra at 255.
Instantly, the trial court evaluated Father’s legal filings, and it found
that Father’s actions did not warrant an award of counsel fees to Mother:
[F]ather’s conduct was not stubbornly persistent in
wronging, and therefore not obdurate, because there is
nothing “wrong” about bringing non-frivolous (and here
meritorious) claims of contempt against another party. The
conduct was not vexatious because there were sufficient
legal grounds for bringing a contempt petition where one
party fails to comply with a custody order; there were
sufficient factual grounds to do so based upon [M]other’s
failure to exchange the children in accordance with the
terms of the Custody Order; and the court found that the
petitions were not brought for the sole purpose of causing
annoyance, but rather, to encourage [M]other through
positive punishment to comply with the Custody Order in
the future. Additionally, [F]ather’s petitions were not
repetitive because they sought contempt for distinct
violations of the Custody Order on different occasions.6
6 In her New Matter, [M]other did not actually seek an
award for counsel fees on this basis, but the court
made the finding on the record that the conduct was
not repetitive.
The court also found that the petitions were not filed in bad
faith because there was nothing fraudulent, dishonest, or
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corrupt about them. [M]other argued that [F]ather acted in
bad faith by refusing to make alternate accommodations
with [M]other by “mutual agreement” as that term is
defined in Paragraph 10 of the Custody Order. Paragraph
10 states, in relevant part, that “[t]his custody arrangement
may be modified by an agreement of the parties when
required for the best interest of the children. The term
‘mutual agreement’ contemplates good faith discussions by
both parents to reach an agreement as to specific dates and
times of partial custody or visitation[.]” The court has
already noted its criticism of [F]ather on the record and
arguably, [F]ather has not acted in good faith in his
negotiations with [M]other to reach an amicable resolution
for the sake of the children. But there is a gulf between
conduct not done in good faith, and conduct committed in
bad faith. That [F]ather has been somewhat selfish in his
dealings with [M]other—at the expense of not only
[M]other, but more importantly, the children—is not a solid
basis, on its own, to find that he acted fraudulently,
dishonestly, or corruptly in filing the contempt petitions or
in negotiating with [M]other.
(Trial Court Opinion at 12-13) (record citations omitted). Based upon our
review of the statute and relevant cases interpreting its language, we are
satisfied with the court’s reasoning in support of its denial of Mother’s request
for counsel fees. See 23 Pa.C.S.A. § 5339. See also Moyer, supra; Dong
Yuan Chen, supra. Accordingly, Mother is not entitled to relief on her final
issue, and we affirm the order granting Father’s contempt petition.
Order affirmed.
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DATE: 10/25/2024
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