Opinion
J-A16005-17 No. 60 WDA 2017
08-28-2017
J.R., Appellant v. L.T., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated December 21, 2016
In the Court of Common Pleas of Allegheny County
Family Court, at No(s): FD 07-003697-004 BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
In his tenth appeal, J.R. (Father) appeals from the order of December 21, 2016, which enforced the legal custody provisions of the parties' March 24, 2015 custody order. We affirm and remand for a determination of counsel fees to be awarded to Mother.
There are actually two orders at issue in this appeal. As explained by the trial court:
The reason there are two orders is because each party submitted a proposed order with their respective motion. For housekeeping purposes, [the trial court] typically will deny one proposed order in full with the direction to "see order of same date." The [trial court] will then use the second proposed order as the template for its ultimate decision. Here, the [trial court] mistakenly abandoned this good practice in the haste of the motions argument ... [.]Trial Court Opinion, 2/8/2017, at fn. 1.
The trial court summarized the protracted history of this case as follows.
[Father and L.T. (Mother)] are parents to a nine-year-old son [J.R. Jr., born April 2007 (Child)]. The history of this custody case is the history of Father's very litigious conduct. Litigation greatly increased after March 2015, when after a custody hearing, [the trial court] awarded Mother the sole legal custody authority to make medical and educational decisions on behalf of [Child]. Father was named the sole legal custodian on matters pertaining to [Child's] optical, dental and orthodontic needs.
The driving force behind [the trial court's] division of legal custody was Father's record of animosity on this case. In its decision, which has long since been affirmed by [this Court, the trial court] noted instances of Father's hostility and inability to communicate or cooperate with Mother. This behavior, which the [trial court] described then as stalking, was so egregious that it was — and still is — in [Child's] best interests if the custody order separated the co-parenting as much as possible. The physical schedule was ordered to be week on week off. The parties need not [obtain] the other's prior approval to enroll the child in extracurriculars. And the legal decisions were divided such that the respective parent was put in exclusive charge of certain domains.
Among the reasons for this custody scheme was [the trial court's] desire to make the custody order "as simple as possible, as clear-cut as possible," an expression that soon became Father's favorite chapter and verse as he has routinely quoted it back to the [trial court] in virtually all motions' arguments and in nearly every one of Father's petitions.
The genesis of the instant appeal was Mother's discovery that Father had been taking [Child] to see a therapist, and that he had done so for 18 months, unilaterally, and in violation of the custody order. Father had told Mother that he wanted to take [Child] to a therapist in June 2015. Mother was against individualized therapy from the onset, but she had told Father she would reconsider her position if [Child] was first reevaluated by the cognitive psychologist who had previously determined that [Child] was too young for individualized therapy. It was Mother's apparent understanding that [Child] did not receive individualized therapy as the parents never made arrangements
to have [Child] reevaluated. Father contends that Mother knew and thus implicitly consented. Fast forward 18 months later, when in December 2016 Mother inadvertently received a $100 bill for [Child's] psychological services and learned that Father had gone against both Mother's wishes and the [c]ustody [o]rder and enrolled [Child] in therapy anyway. Mother immediately brought the subject [petition for enforcement and special relief] seeking to end this practice as well as recoup the $100 copay.Trial Court Opinion, 2/8/2017, at 1-4.
At the motions' argument, Mother articulated her reasons against individualized therapy, citing the previous evaluation that [Child] was too young. However, Mother was amicable to therapy if it was conducted in a family setting. Father could not articulate any of his reasons. Instead, he became so disruptive and hostile to both [the trial court] and opposing counsel, even after warnings from both [the court] and the deputy present in the room, that [the trial court] was forced to discontinue the motions' argument and issue a ruling.
The ruling interpreted and enforced Paragraph 4 of the March 24, 2015 Custody Order which provides: "All decisions involving legal custody shall be shared with the exception of the following: [list omitted]." Absent from this list was any mention of mental health services. Thus, mental health issues would be one of the few matters where the parents would need to be in agreement before one parent took any action. At the motions' argument, the [trial court] was prepared to enforce Paragraph 4, which would effectively prohibit Father from taking [Child] to individualized therapy absent Mother's consent. However, despite Father's disruption, Mother was able to articulate that she would not be opposed [Child's] enrollment in therapy so long as it was conducted in a family setting. As such, [the trial court] ordered that Paragraph 4 continues to require mutual consent for mental health issues, save for family-style therapy, where Father can enroll [Child]. The [trial court] further ordered that [Child's] mental health records shall be accessible by both parents, just like [Child's] medical records, optical records, etc.[, and that Father pay the $100 copay Mother had received for Child's therapy].
Father timely filed a notice of appeal, and complied with the trial court's order directing him to file a concise statement of matters complained of on appeal. The trial court filed its opinion on February 8, 2017.
Father states the following inartfully phrased questions for our review.
1. Did the trial court err committing an abuse of discretion and/or an error of the law by, inter alia, modifying the custody order, notwithstanding its failure to conduct a modification hearing?
2. In regard to [] Mother's access to [Child's] records with CDTA, did the trial court err by even addressing the proposal to Paragraph 4(g) of the March 24, 2015 custody order of court [which] clearly grants both parties access to ALL records regarding [Child]. Mother already having access to the records makes the need to for it to be address[ed] null; since [] Mother does not have and never has had any legal or permitted access to [] Father's records and therefore has no place in being addressed?
3. Did the trial court err by ignoring the duty set before it to ensure the best interest of [Child] comes before all else by forbidding [Child] to continue receiving services with the therapist he has grown familiar with over the period of eighteen months?
4. In her continued abuse of discretion, general bias, and incompetence, did the trial court err when order [] Father to pay the $100[.00] balance to CDTA? This err/question is two-fold;
a. [] Mother addresses the request to the [trial court] in a matter that deems it necessary due to [] Father's non-compliance with the custody order of court, which is untrue.
b. The trial court's refusal to speak to [] Father's response and new matter which clearly addressed two key elements in support of his argument;
Father's Brief at 2-3 (unnecessary capitalization omitted).i. The trial court's custody order, including the same trial court's words to both parties after having read it aloud on March 24, 2016
ii. [] Mother's false and misleading statements within her original petition.
"We review an order disposing of a petition for special relief under an abuse of discretion standard of review." Kulp v. Kulp , 920 A.2d 867, 870 (Pa. Super. 2007). "An abuse of discretion requires proof of more than a mere error in judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice, or partiality." Simmons v. Simmons , 723 A.2d 221, 222 (Pa. Super. 1998).
Following our review of the certified record, the briefs for the parties, and the relevant law, we conclude that the opinion of the Honorable Kathryn M. Hens-Greco correctly addresses and disposes of Father's issues and supporting arguments. Specifically, the trial court found: (1) it did not modify the existing custody order without a hearing, it only enforced paragraph 4 of the parties' agreement, which set forth that Mother and Father share legal custody as it pertains to the mental health of Child, and furthermore, it did not amend or supplement the custody order, but merely clarified that Mother would not oppose Father enrolling Child into family therapy; (2) it did not err in reaffirming what the custody order already allowed for, equal access to both parents to Child's medical records, which the court relayed at the motions hearing, included Child's mental health records; (3) it did not err in enforcing the custody order, and thus forbidding Father from continuing to take Child to individualized therapy; (4) it did not err in ordering Father to pay the copay incurred from Child attending therapy; and (5) Father's claims that the trial court is incompetent and biased are meritless. Trial Court Opinion, 2/8/2017, at 5-10.
In agreeing with the trial court, we reject Father's argument that because the custody order did not clearly state that Mother's permission must be obtained before enrolling the Child in therapy, the trial court's holding that Mother's permission was necessary amounted to a modification of the order. It is clear that order specified that all legal custody issues, with the exception of a few specific issues, were to be shared. Thus, Father was on notice that Mother must share in the decision-making as it pertains to enrolling Child in therapy.
We agree with the trial court's reasoning and conclusions. Accordingly, we adopt the trial court's February 8, 2017 opinion as our own, and affirm the trial court's disposition of Father's issues on the bases of this opinion. The parties shall attach a copy of the trial court's opinion to this memorandum in the event of further proceedings.
We recognize that the opinion at two places on page one refers to December 2017 when it obviously meant December 2016. --------
Lastly, we address Mother's request for counsel fees based upon Father's "vexatious and frivolous behavior," in which Mother avers that in addition to Father's various filings in the trial court and this Court, which are based upon "fruitless claims," Father has engaged in harassing behavior, including name-calling. Mother's Brief at 16-20.
Under Pa.R.A.P. 2744, an appellate court may award counsel fees and other damages when it determines that "an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious." An appeal is "frivolous" if the appellate court determines that the appeal lacks any basis in law or in fact.Lundy v. Manchel , 865 A.2d 850, 857 (Pa. Super. 2004) (some citations omitted). "[A]n appellate court may award as further costs damages as may be just ... if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule." Pa.R.A.P. 2744.
Upon review, we agree with Mother that Father's conduct both immediately preceding this appeal and during the appeal has been obstreperous and vexatious. We note with displeasure that this is Father's tenth appeal since March 2015, and reiterate, as we have found in the past, that "Father's appeals are frivolous, dilatory, obdurate, and vexatious and his abuse of the legal process is unwarranted." J.R. v. L.T , 161 A.3d 383 (Pa. Super. 2017) (unpublished memorandum).
Accordingly, we grant Mother's request for counsel fees and remand this matter to the trial court for calculation of reasonable counsel fees.
Order affirmed. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/28/2017
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