N.D.J. v. D.E.J.

J. S17040/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

N.D.J. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

D.E.J., : No. 1976 MDA 2019

:

Appellant :

Appeal from the Order Entered December 2, 2019,

in the Court of Common Pleas of York County

Civil Division at No. 2015-FC-001144-03

BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 19, 2020

D.E.J. (“Mother”) appeals pro se from the December 2, 2019 order of

adjudication of contempt of Mother and finding of no contempt of N.D.J.

(“Father”) entered in the Court of Common Pleas of York County

(“Contempt Order”). We affirm.

The record reflects that Father initiated the underlying custody action

when he filed an action in divorce and custody against Mother on June 23,

2015. The custody action concerns the parties’ children, A.D.J., born in

February 2010; R.L.J., born in January 2012; and L.N.J., born in May 2014

(collectively, the “Children”). Since Father’s initiation of the underlying

custody action, the parties have filed numerous petitions that eventually

resulted in the entry of a final custody order on September 5, 2019

(“Custody Order”) wherein the trial court awarded shared legal custody of the

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Children to Mother and Father and primary physical custody of the Children to

Father. We note that following entry of the Custody Order, Mother and Father

filed timely appeals of that order. This court consolidated Mother’s and

Father’s cross-appeals of the Custody Order at Nos. 1609 MDA 2019 and

1629 MDA 2019.

As it relates to this appeal, on October 15, 2019, Mother filed a petition

for contempt against Father, alleging that Father

willfully failed to obey the [Custody O]rder in that:

Father was ordered to arrange and begin the

[C]hildren with a new counselor within 30 days of the

[Custody O]rder, and he has not done so. Father was

ordered to ensure prior to selecting a proposed

counselor, the practice accepts the [C]hildren’s

insurance and would be able to establish an

appointment within 30 days.

Mother’s “petition for contempt of custody,” 10/15/19 at 1, ¶ 5.

Father filed an answer to petition for contempt that included a “counter

petition for contempt and modification.” (Father’s answer to petition for

contempt, 10/29/19 at 31 (full capitalization omitted).) In his counter-petition

for contempt, Father set forth the following:

9. In the Opinion entered by the [trial c]ourt in

Support of its [Custody Order,] the trial court

indicated:

“Credible testimony from the

[Children’s] therapist illustrates that

[M]other engaged in a course of

1 We note that Father’s answer to petition for contempt is devoid of page

numbers. For ease of reference, we have assigned page numbers to the

answer.

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conduct to undermine the therapeutic

relationship and failed to cooperate

with therapy. Mother discussed

[A.D.J.’s and R.L.J.’s] past sexual

conduct in their presence despite the

therapist’s admonishment that

[M]other should desist, which was

corroborated by [F]ather. When the

therapist did not agree with

[M]other’s opinions, [M]other’s

conduct became so antagonistic [that

M]other was banned from the

therapist’s practice. As a result, the

therapist is no longer able to maintain

a positive therapeutic relationship

with the entire family and believes

the [C]hildren should engage with a

new therapist. This conduct is in

direct violation of the prior order.”

10. As per the [Custody O]rder, and with the

assistance of the [C]hildren’s prior counselor,

Laura Frie, Father had identified Betsy Craft and

Andrew Rupert of the Center for Creative Arts

and Play Therapy as appropriate therapists for

the [C]hildren and did so in a timely fashion by

scheduling their first appointment for October 3,

2019.

11. It is averred that when Father notified Mother

on September 18, 2019 of his selection of the

therapists, Mother began to engage in a

campaign to contact the above referenced

therapists and their practice incessantly in an

effort to impart her continuing irrational

“concerns” with regard to the [C]hildren having

been sexually abused or physically abused by

Father and/or Father’s family.

12. It is averred that a new allegation of abuse

against Father (the 8th in two years) was lodged

with York County Children Youth and Families

on or about September 17, 2019.

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13. Father provided notification to Ms. Craft and

Mr. Rupert of the newest allegations.

14. It is believed that the [C]hildren’s former

therapist, Laura Frie, also communicated with

Betsy Craft prior to the [C]hildren’s first

scheduled appointment.

15. It is averred that as a result of Mother’s past

behaviors with Ms. Frie, combined with the

latest allegation of abuse, combined with

Mother’s harassing contact of the Craft/Rupert

offices in the weeks prior to the scheduled

appointment, that the Center for Creative Arts

and Play Therapy declined the [C]hildren as

they did not wish to be enmeshed with Mother’s

continuing campaign of false allegations of

sexual and physical abuse against Father.

....

17. Father has significant concerns that Mother will

do everything in her power to undermine any

selection of the [C]hildren’s counselors who are

not of her liking, and specifically who do not

have as their focus “sexual abuse” and/or

“sexual trauma.”

18. Father avers that Mother’s behaviors as

delineated with more specificity above are in

willful contempt of the [Custody Order] for

which he deserves to be reimbursed for his

counsel fees and costs.

Id. at 3-5. In addition to these averments, Father identified Mother’s “refusal

to allow the [C]hildren to participate in extracurricular activities as a willful

violation of the [Custody Order.”] Id. at 5, ¶ 25.

On November 22, 2019, the trial court held a contempt hearing. At the

conclusion of the hearing, the trial court found that Mother’s allegations of

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contempt against Father were unfounded. (Notes of testimony, 11/22/19 at

98-99.) The trial court then found Mother in contempt of court for

unreasonably withholding her consent to permit the Children to participate in

extracurricular activities. (Id. at 98-100.) The trial court took sanctions

against Mother under advisement. (Id. at 100-102.) On December 5, 2019,

the trial court entered the Contempt Order. In that order, the trial court noted

that “[p]rior sanctions have been unsuccessful in encouraging Mother to

comply with [o]rders of [the trial c]ourt.” (Contempt Order at 6-7.) The trial

court imposed sanctions of seven days of incarceration at York County Prison,

but suspended the sanctions

conditioned on [Mother’s] cooperation with the

co-parent counseling[2] and compliance with any

recommendations made by the co-parent counselor.

In the event that Mother fails to appear for scheduled

sessions, engages in behaviors that obstruct the

co-parent counseling, or fails to comply with

recommendations, upon motion and sufficient

evidence, Father may petition for the [trial c]ourt to

issue a Rule upon Mother to show cause why the

sentence should not be imposed. Mother is on notice

that incarceration will be imposed for noncompliance.

2 The trial court noted that it had “repeatedly directed” that Mother and Father

participate in co-parenting counseling. (Contempt Order at 7.) The trial court

further noted that it had first ordered co-parent counseling in its July 24, 2018

custody order and that neither party complied. (Id.) The trial court again

ordered co-parent counseling in the Custody Order. (Id.) The trial court

noted that although Mother and Father are appealing portions of the Custody

Order, the requirement for co-parenting counseling is not an issue on appeal.

(Id.) The trial court then noted that Father reported that co-parenting

counseling was scheduled to begin on or about December 5, 2019. (Id.)

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Id. at 7-8. The trial court also found “it necessary to appoint a parent

coordinator” pursuant to Pa.R.Civ.P. 1915.11-1. (Id. at 8.) The trial court

stated that the “appointment of a parenting coordinator shall be made by

separate order with the initial responsibility of cost of the parent coordinator

being assessed at 75% to Mother and 25% to Father.” (Id.)

Mother filed a timely notice of appeal, together with a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The

trial court then filed its Rule 1925(a)(2)(ii) opinion.

Mother raises the following issues:

1. Did the trial court commit an abuse of discretion

in finding Mother in civil contempt and ordering

sanctions, including incarceration with a vague

purge condition?

a) Did the trial court commit an abuse of

discretion in finding that Mother and

Father had come to an “agreement”

regarding extracurricular activities

when Mother believed they were still

in negotiations?

b) Did the trial court commit an abuse of

discretion in finding that Mother

unreasonably withdrew any

agreement that may or may not have

been reached?

c) Did the trial court commit an abuse of

discretion for issuing a vague purge

condition for the contempt?

2. Did the trial court commit an abuse of discretion

in failing to find Father in contempt of court for

failing to enroll the children in counseling within

the period required?

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3. Did the trial court commit an error of law or an

abuse of discretion in modifying a provision of

an order that is currently under appeal?

4. Did the trial court commit an abuse of discretion

in ordering an unequal contribution of the

parties for payment of the parenting

coordinator?

5. Did the trial court commit an abuse of discretion

in failing to admit or consider exhibits that were

submitted into evidence and not objected to?

Mother’s brief at 2-3.

At the outset, we note that after the filing of an appeal, a lower court

generally loses jurisdiction to proceed further in a matter. Pa.R.A.P. 1701(a);

see also In re J.A., 107 A.3d 799, 809 (Pa.Super. 2015). Rule 1701(c),

however, provides that “[w]here only a particular item, claim or assessment

adjudged in the matter is involved in the appeal, . . . the appeal . . . shall

operate to prevent the trial court . . . from proceeding further with only such

item, claim or assessment,” unless the lower court or this court otherwise

orders. Pa.R.A.P. 1701(c); see also In re J.A., 107 A.3d at 809.

Here, when the trial court held the contempt hearing and entered the

Contempt Order, Mother’s and Father’s cross-appeals of the Custody Order

were pending before this court. Mother’s pending appeal raised claims of error

and abuses of discretion with respect to the trial court’s application of certain

of the rules of civil procedure; the trial court’s permitting Father to choose a

new therapist for the Children; the trial court’s failure to adequately safeguard

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the Children; the trial court’s finding of Mother in contempt of its July 24, 2018

custody order; and the trial court’s analysis of the 23 Pa.C.S.A. § 5328(a)

factors to consider when awarding custody. Father’s pending appeal only

challenged the trial court’s denial of his relocation request.

In her petition for contempt of the Custody Order, Mother alleged that

Father was in contempt because he failed to have the Children seen by a

therapist within 30 days. (Mother’s “petition for contempt of custody,”

10/15/19 at 1, ¶ 5.) In Father’s counter-petition for contempt, Father alleged

that Mother interfered with his arranging for the Children to be seen by a

therapist3 and identified “Mother’s refusal to allow the [C]hildren to participate

in extracurricular activities as a willful violation of the [Custody Order].”

(Father’s counter-petition for contempt and modification, 10/29/19 at

unnumbered pp. 3-6, ¶¶ 9-18, 25.) Because the claims raised in the pending

appeals of the Custody Order were not relevant to or at issue in the contempt

proceeding, the trial court retained jurisdiction over the issues relating to the

parties’ petitions for contempt.

Appellate review of a contempt order is limited to

determining whether the trial court abused its

discretion. If a trial court, in reaching its conclusion,

overrides or misapplies the law or exercises judgment

which is manifestly unreasonable, or reaches a

conclusion that is the result of partiality, prejudice,

bias or ill will as shown by the evidence of record, then

discretion is abused.

3 We note that the trial court determined that Father’s contention that Mother

violated the Custody Order by interfering with his scheduling of the Children’s

new therapist was “unfounded.” (Notes of testimony, 11/22/19 at 99.)

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N.A.M. v. M.P.W., 168 A.3d 256, 261 (Pa.Super. 2017) (internal citations

and quotation marks omitted).

Each court is the exclusive judge of contempts against

its process. The contempt power is essential to the

preservation of the court’s authority and prevents the

administration of justice from falling into disrepute.

When reviewing an appeal from a contempt order, the

appellate court must place great reliance upon the

discretion of the trial judge.

Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa.Super. 2002).

Moreover, this court “defers to the credibility determinations of the trial court

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

the opportunity to observe their demeanor.” Harcar v. Harcar, 982 A.2d

1230, 1236 (Pa.Super. 2009) (citations omitted).

It is established[ that t]o be in contempt, a party must

have violated a court [o]rder, and the complaining

party must satisfy that burden by a preponderance of

the evidence. Specifically, the complainant must

prove certain distinct elements[:] (1) that the

contemnor had notice of the specific order or decree

which he is alleged to have disobeyed; (2) that the act

constituting the contemnor’s violation was volitional;

and (3) that the contemnor acted with wrongful

intent.

J.M. v. K.W., 164 A.3d 1260, 164 (Pa.Super. 2017) (en banc) (internal

citations and quotation marks omitted; some brackets in original).

Mother first complains that the trial court abused its discretion in finding

her in contempt. In this issue, Mother includes three sub-issues in her brief.

Mother’s first and second sub-issues are interrelated. In those, Mother claims

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that the trial court abused its discretion in finding that her withholding of

consent to permit the Children to participate in extracurricular activities was

unreasonable. Mother claims that even though she initially agreed to permit

the Children to participate in extracurricular activities in exchange for Father’s

agreement to adjust her periods of custody, her subsequent withholding of

consent was not unreasonable because the parties were engaged in ongoing

negotiations. (Mother’s brief at 12-14.) According to Mother, because she

and Father had not agreed to all of the terms of their agreement, “[it] was

clearly an abuse of discretion for the trial court to find an agreement to all

terms had occurred . . . .” (Id. at 13-14.) Mother then discusses three-day

contract cancellation rights, unjust enrichment, and promissory estoppel. (Id.

at 16.) Mother’s argument entirely misses the mark. This appeal concerns a

contempt finding, not a contract dispute. Because Mother has failed to

develop a relevant legal argument and cite to relevant authority, Mother

waives her first and second sub-issues on appeal. See Pa.R.A.P. 2119(a) (an

appellate brief must contain “discussion and citation of authorities” to each

issued raised); see also Butler v. Illes, 747 A.2d 943, 944 (Pa.Super. 2000)

(“When issues are not properly raised and developed in briefs, when briefs are

wholly inadequate to present specific issues for review, [this] court will not

consider the merits thereof.” (citations omitted)).4

4 We note that Mother’s pro se status does not relieve her of her duty to

properly raise and develop appealable claims. Smathers v. Smathers, 670

A.2d 1159, 1160 (Pa.Super. 1996).

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Notwithstanding waiver, we note that in finding Mother in contempt, the

trial court determined, as follows:

It is clear that [Mother] did consent provided [that

Father] adjusted the schedule, which he agreed to.

Then she unreasonably withheld consent with other

conditions related to an irrelevant area of the

[Custody] Order to the extracurriculars because

[Father] had already agreed to abide by the [Custody]

Order and make the counseling a priority. So [the

trial court does] find that [Mother] is in willful violation

of the [Custody O]rder.

As [Mother] started, she outlined what the conditions

are for making a finding of contempt, that there was

a clear order, and that the violation was willful. It is

clear that after agreeing to the extracurriculars

provided the conditions were held, and after [Father]

agreed to her conditions, then she wanted to add

more conditions to the consent. [The trial court]

find[s] that unreasonable.

Notes of testimony, 11/22/19 at 99-100.

Even if Mother had not waived her first and second sub-issues on appeal,

our thorough review of the record demonstrates that the trial court properly

exercised its discretion.

In her final sub-issue of issue one, Mother complains that the trial court

abused its discretion in imposing a vague purge condition. Mother did not

raise this issue in her Rule 1925(a)(2)(i) statement and, therefore, waives it

on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (stating that issues not included in

the concise statement are waived).

In her second issue, Mother claims that the trial court abused its

discretion when it did not find Father in contempt for failing to enroll the

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Children in counseling within 30 days of the Custody Order. In her argument

on this issue, Mother concedes that Father had appointments for the Children

set for October 3, 2019, which was within the 30-day period provided in the

Custody Order. (Mother’s brief at 22.) Mother also concedes that the practice

cancelled the appointments on October 2, 2019. (Id.) Mother’s complaint is

that “Father’s refusal to have the [C]hildren evaluated by a practice that

specializes in experiences these [C]hildren have had is clearly with wrongful

intent . . . .” (Id. at 23-24.) Mother identifies the experiences as sexual in

nature. (Id. at 24.) Mother then requests that this court remand “the case

to the trial court with instructions to order the [C]hildren into therapy that is

qualified to meet their needs . . . .” (Id.) Clearly, Mother is unhappy that

Father will not enroll the Children in the type of therapy that Mother believes

that Father should enroll them in. Indeed, Mother requests that we remand

this case “with instructions to order the [C]hildren into therapy that is qualified

to meet their needs[.]” (Id.)

In finding that Father was not in contempt, the trial court first

determined that Father’s evidence was credible. (Contempt Order at 2.) The

trial court then concluded that

Mother has failed to support her claim that Father did

not timely schedule the counseling session pursuant

to the [Custody O]rder. Father provided sufficient

evidence to show that on September 18, 2019 he did

timely arrange for counseling to begin for [A.D.J.] and

[R.L.J.] on October 3, 2019 which was within thirty

(30) days of the [Custody] Order and for which Mother

was provided timely notice. Father was not notified

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that the counselor would be unable to provide services

until the eve of the appointment deadline. Upon

receipt of notification that the counselor was unwilling

to provide counseling services to the [C]hildren,

Father took immediate remedial action to secure an

appointment with a qualified and appropriate

counselor, utilizing the recommendations by the

professionals referred by the initial counselor. Father

has sole legal custody as it relates to enrolling the

[C]hildren into counselling and, therefore, has the

exclusive right to consent to the counseling treatment

for the [C]hildren. The [trial c]ourt finds that,

although the counseling session did not occur within

thirty (30) days, Father did not willfully violate the

Custody Order.

Id. 2-3. We have thoroughly reviewed the record. We find no abuse of

discretion.

Mother next complains that “the trial court commit[ed] an error of law

or an abuse of discretion in modifying a provision of [the Custody O]rder that

is currently under appeal.” (Mother’s brief at 24.)

At the outset, and as discussed above, the trial court had jurisdiction to

conduct the contempt hearing pursuant to Pa.R.Civ.P. 1701. As Mother

suggests, however, a contempt proceeding cannot be converted into a custody

modification proceeding without proper notice and due process. (See

Mother’s brief at 25-27; see also G.A. v. D.L., 72 A.3d 264, 270 (Pa.Super.

2013) (concluding that trial court abused its discretion where it modified

custody by reinstating previous order notwithstanding that father, in his

contempt petition, never sought modification).)

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Here, in its Custody Order, the trial court directed that “Father shall

have sole legal custody for the purpose of enrolling the Children with a new

counseling practice” which included the “exclusive right to consent to

counseling treatment for the Children.” (Custody Order at 2.) In the

Contempt Order, the trial court directed that:

[f]or clarification purposes and without the need to

modify the Custody Order, the [trial c]ourt orders and

directs that Father shall notify the counselor for each

child that he has the exclusive right to consent to the

treatment of the [C]hildren. Despite this right, both

parents shall cooperate with the counseling sessions

by ensuring that the [C]hildren attend for the

frequency and duration as recommended by the

child’s counselor. Mother shall have the right to

verbally communicate with the counselor so long as

such communication is initiated by the counselor or

occurs at the specific request of the counselor.

Otherwise, communication shall be in writing with a

copy of any such communication to Father. Any

communication by Mother to the counselor shall be

relevant to the counselor’s treatment plan as it is

determined by the counselor, shall not be excessive in

length or frequency, and shall not be disruptive to the

sessions or treatment as a whole. Father shall ensure

that the counselor treating each child has contact

information for Mother and Laura Frie to enquire at

his/her option, of any treatment needs of the subject

child.

Contempt Order at 3.

To support her contention that the trial court improperly modified

custody, Mother relies on P.H.D. v. R.R.D., 56 A.3d 702 (Pa.Super 2012).

There, mother filed a contempt petition alleging that father had violated a

provision of the custody order that directed that father “have no contact with

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the children other than supervised visits” when father appeared at one of the

children’s band concerts. Id. at 704. At the contempt hearing, the trial court

“clarified” the custody order by explaining that father was “not to appear at

places where the children would reasonably be expected to be.” Id. Father

appealed, claiming that the trial court abused its discretion and/or erred as a

matter of law by modifying the custody order without a modification hearing.

Id. at 705-706. This court determined that the trial court’s “clarification” was

a modification of the custody order because it imposed new restrictions on

father’s custody such as prohibiting him from attending school and community

activities that the children were likely to attend. Id. at 706-707. Accordingly,

this court vacated that part of the contempt order that purported to relate to

a custody modification, but was labeled as a “clarification,” because father had

no notice that custody would be an issue at the contempt hearing which

violated his due process rights. Id. at 707-708.

Here, and unlike P.H.D., custody was not at issue in the contempt

proceeding. Father had already been awarded sole legal custody for the

purpose of enrolling the Children in counseling, as well as the exclusive right

to consent to treatment. The Contempt Order’s clarification only concerned

the manner in which Mother must communicate with the Children’s therapist –

not the manner in which Mother must communicate with the Children. The

contempt order in no way deprived Mother of her right to share in “making

decisions of importance in the life of [the] Children, including educational,

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medical, and religious decisions.” (Custody Order, 9/5/19 at 2; see also

23 Pa.C.S.A. § 5322 (defining legal custody). Therefore, this issue lacks

merit.

In her fourth issue, Mother complains that the trial court abused its

discretion “in ordering an unequal contribution of the parties for payment of

the parenting coordinator.” (Mother’s brief at 27.)

In its Contempt Order, the trial court found it necessary to appoint a

parent coordinator pursuant to Pa.R.Civ.P. 1915.11-1 Order “due to the high

conflict nature of the parties and the recent dispute regarding participation in

extracurricular activities[.]” (Contempt Order at 8.) The trial court directed

that Mother pay 75 percent of the cost of the parent coordinator and Father

pay 25 percent. (Id.) The trial court explained that it required Mother to pay

a larger percentage because she had twice previously been found in contempt

and Father had never been found in contempt. (Trial court opinion, 12/24/19

at 8.)

In her brief on this issue, Mother fails to set forth a legal argument to

support her claim. Rather, Mother complains that the trial court “fail[ed] to

consider Father’s role in all of these issues” and that “Father [refuses] to have

the [C]hildren seen by a therapist qualified to treat children who have engaged

in” certain sexual activities. (Mother’s brief at 28-29.) Mother waives this

issue on appeal for failure to develop a legal argument. See

Pa.R.A.P. 2119(a); see also Butler, 747 A.2d at 944.

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In her final issue, Mother claims that the trial court “abuse[d its]

discretion in failing to admit or consider exhibits that were submitted into

evidence and not objected to[.]” (Mother’s brief at 30.) Mother claims that

she “specifically asked that all exhibits discussed by her in testimony and

arguments be admitted into evidence” (id.), citing to the following portion of

Mother’s direct examination of Father:

Q. . . . So on 9/16, you’re asking me about

baseball and wrestling 11 days after the Order.

Is that correct? Exhibit G, I’m sorry, I’d like to

submit any exhibits I discuss into evidence,

please. So Exhibit G?

A. Okay.

Notes of testimony, 11/22/19 at 40-41.

Mother claims that because she stated that she would “like to submit

any exhibits [she] discuss[es] into evidence” (id.), the trial court abused its

discretion in not admitting all of her exhibits. Mother fails to cite to any legal

authority for this proposition, and we know of none. We have held that:

This [c]ourt is neither obliged, nor even particularly

equipped, to develop an argument for a party. To do

so places the [c]ourt in the conflicting roles of

advocate and neutral arbiter. When an appellant fails

to develop his issue in an argument and fails to cite

any legal authority, the issue is waived.

In re S.T.S., 76 A.3d 24, 42 (Pa.Super. 2013) (internal citations and citation

omitted). Therefore, Mother waives this issue on appeal.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/19/2020

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