Opinion
J-S96029-16 No. 1182 WDA 2016
01-30-2017
M.G. v. S.J. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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. We affirm.
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.
Mother and Father married on February 5, 1994, separated in 2007, and divorced on April 13, 2010. This custody litigation has a long and 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 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 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 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.
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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/30/2017
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