Opinion
J-A13015-18 No. 1915 WDA 2017
10-10-2018
G.L.F., JR. Appellant v. B.A.F.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered November 28, 2017
In the Court of Common Pleas of Butler County Civil Division at No(s): F.C. 11-90666-C BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY OLSON, J.:
G.L.F., Jr. ("Father") appeals from the order dated November 27, 2017, and entered November 28, 2017, granting a petition for special relief filed by B.A.F. ("Mother") in the custody proceedings between the parties. We vacate and remand for further proceedings.
Father and Mother are the parents of daughters A.R.F., G.R.F., and G.M.F., born in March 1999, January 2002, and March 2007, respectively, and son, H.L.F., born in December 2009 (collectively, the "Children"). The parties were married in September 1996, and divorced in May 2013. On July 11, 2014, Father, acting pro se, filed a complaint for custody. On September 15, 2015, the trial court entered a consent order providing the parties with shared legal and physical custody of the Children.
On July 28, 2016, Father, acting pro se, filed a petition for modification of custody and a petition to proceed in forma pauperis. On August 8, 2016, Mother filed a petition for modification of custody. On September 8, 2016, the trial court denied Father's pro se petition to proceed in forma pauperis for failing to appear at the hearing, and directed Father to pay the associated filing fees for his pro se petition for modification of custody. On October 12, 2016, the trial court dismissed Father's pro se petition for modification of custody without prejudice, based upon his failure to pay the associated filing fees.
On December 28, 2016, after a failed custody conciliation on November 8, 2016, the trial court ordered the parties to follow the custody schedule in the consent order dated September 15, 2015 until further order of court. In that same order, the trial court reinstated Father's pro se petition for modification of custody, and ordered him to reimburse Mother for half of the filing fees.
The trial court held a two-day custody trial on May 5, 2017, and June 28, 2017, then entered its findings of fact and memorandum opinion and its custody order on September 1, 2017. The trial court found that the parties have had a contentious history. A.R.F. does not spend time with Father because of an incident that occurred between Father and his current wife, A.K.F., at Father's house, so A.R.F. is not a subject of these custody proceedings. At the time of the September 1, 2017 order, G.R.F. was in tenth grade, and was diagnosed with Bell's Palsy. She is apprehensive about any potential disruption to her daily routine. G.M.F. was in the fourth grade, and was diagnosed with Downs Syndrome, sensory processing disorder, attention deficit hyperactivity disorder, and nystagmus. H.L.F. was eight years old, and was in the second grade. H.L.F. suffers from absence epilepsy, which causes him to experience seizures. His condition is manageable through medication and careful monitoring.
In the September 1, 2017 order, the trial court made findings of fact with regard to the custody best interest factors under 23 Pa.C.S. § 5328. With regard to factors 5328(a)(13) and (16), the trial court found the following:
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
Here, there is a high level of conflict between Mother and Father. They are unable to communicate in a reasonable manner when it comes to the needs of their children. Although Father asserts that Mother's controlling behavior causes him to react angrily towards her, given the nature and severity of their children's particular needs together with Father's unwillingness to cooperate, Mother's heightened sense of vigilance is entirely reasonable and warranted. Accordingly, this factor weighs in favor of Mother.
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(16) Any other relevant factor.
The [trial court] does not place any weight or consideration towards each party's respective financial means; however, the [trial court] notes that Father's motivation for filing for a modification of custody, relates to, in part, his current child
support obligations. Notwithstanding this fact, Father, in his communications with Mother, routinely highlights the fact that he is more financially secure than [Mother]. As such, the [trial court] finds Father's braggadocios comments to be overtly antagonistic. Father's behavior, in this regard, creates unnecessary conflict, which does not serve [] the best interests of his children. Should Father continue to engage in this behavior, it could negatively impact his custodial rights.Trial Court Opinion, 9/1/17, at 12-13.
The trial court ordered that the parties continue to share legal custody and, pursuant to the parties' September 15, 2015 consent order, the parties would continue to exercise shared physical custody on the following schedule: Father shall exercise custody every Monday and Tuesday, and Mother shall exercise custody every Wednesday, Thursday, and Friday. Weekend custody from Saturday until Monday morning is to alternate between the parents every weekend.
Further, the trial court provided:
COMMUNICATIONTrial Court Order, 9/1/17, at 16 and 18.
. . . Parties shall continue to use Our Family Wizard to communicate and schedule custodial issues. The parties shall communicate respectfully towards each other.
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BUTLER COUNTY POLICIES
The Butler County Custody/Partial Custody Policies are incorporated and made a part of this order.
On September 25, 2017, Mother filed a petition for special relief, raising a number of concerns with Father's behavior after the court entered its September 1, 2017 order. Mother's petition provided as follows:
1. The parties participated in a Custody Trial and an Order was entered by the [trial court] on September 1, 2017. The Order specifically provided, on Page 16, that "the parties communicate respectfully towards each other."Mother's Petition for Special Relief, 9/25/17, at 1-2.
2. The Butler County Custody Guidelines and Policies were adopted and made part of the Order. Those guidelines specifically provide that "neither party shall make any negative comments about the other party while the children are with them, nor shall they allow anyone else within their control to make any negative comments."
Additionally, it is provided that "neither party should discuss any issues outstanding between them with the children."
3. Immediately following entry of the Order of Court and the De Novo Hearing, which resulted in an agreement, Father [began] posting negative comments about Mother and the court system on social media. The children's friends, their parents, and the children themselves, have access to Father's social media.
4. Father has a long history of abusive communication with Mother. The [trial court] Order limits the parties' communication to Our Family Wizard; however, Father is utilizing social media as an alternate way of harassing and disparaging Mother.
5. Father's actions are not in the children's best interest, are embarrassing to the children, and cause undue stress on the children.
WHEREFORE, it is respectfully requested that this Honorable Court prohibit Father from making any negative comments about Mother by name or implication on social media, Father be prohibited from posting any information concerning litigation, Father obtain counseling, and be sanctioned should Father continue such behaviors.
The trial court held a hearing on Mother's petition on October 30, 2017. Mother appeared at the hearing, represented by her counsel, Attorney Gerri V. Paulisick. Father appeared, represented by his counsel, Attorney Hilary Bendik.
At the commencement of the hearing on Mother's petition for special relief, Father's counsel stated that the hearing was unnecessary because Father and Mother had mutually agreed that they would not post matters pertaining to the custody case on their social media on the Internet. N.T. Hearing, 10/30/17, at 2. Mother's counsel stated that Father had not ceased his posting of such matters on the Internet, and she stated that Mother was requesting her counsel fees from Father. Id. at 2-3. Father stipulated that he had posted the matter at issue on the Internet. Id. at 3-4. At the hearing, Mother proffered evidence that demonstrated that Father had posted messages to his Facebook page on the Internet as recently as within twenty-four hours prior to the hearing.
Father does not dispute that the first Facebook post at issue, which was admitted into evidence at the hearing, stated:
TODAY WAS A BIG DAY and a BIG HUG TO MY WIFE [A.K.F.] she stood by my side through a 7 year war of a previous divorce were the County of Butler Pa was for the woman and it is expected that the man is the bread winner. It was inherited to her whether she liked it or not. . . Today JUSTICE WAS DONE . . . because people donated to the cause . . . and they saw what kind of a dad I was . . . we took vacations, camping, school activitys, Doctor visits Med Express, visits . . . swimming. . . school clothes Haircuts . . . we took punches to the gut . . . but was all worth it. . . [A.K.F.] took the blunt of it . . . but she saw on a daily basis what I did and
what I went through and I'm sure infact I know I was hard to live with . . . Hats off to all the men that couldn't afford to fight it . . . I was VERY VERY LUCKY . . . [F---] YOU BUTLER COUNTY PA . . . I WON . . . I lost 6 Figures $91,2041.06 [sic] . . . but I GOT my kids! !!! [F---] you . . . BUTLER . . . WE WIN! ! ! ! KIDS WIN...I WIN . . . [F---] YOU . . . SORRY to all my religious friends out there . . . But don't think it won't happin to you or your kids . . . . people get greedy . . . I love you (Wife [A.K.F.]) Daughters . . . it's over.Father's Brief at 10-11.
Father also does not dispute that the second Facebook post at issue was critical of the Butler County court system, and had a picture of man holding a fish with a part of its head missing. Father's Brief, at 11. Father states that, in the comments to the second posting, he was critical of his treatment by the Butler County court system, and thanked his wife, A.K.F., for standing by him, noting that he had sought 50% physical custody of his children. Id.
Father also acknowledges that additional posts were discussed at the hearing, including the post within twenty-four hours of the hearing on Mother's petition for special relief, which featured a picture of television's Judge Judy that criticized the trial court's decision to give Father 43% rather than 50% physical custody of his children. Id. Father states that, although the court referenced a picture of one of his children, G.M.F., the picture was not admitted, and the content remainder of the post is not discussed in the record. Id. at 12.
Prior to the testimony, the following exchange occurred:
THE COURT: All right. So we are very clear -- this might help everyone -- what [Father] may or may not have said about the [c]ourt, or me in particular, is really not relevant to the proceedings. Freedom of speech if he wants to say something negative about the court system, even though I do find it ironic that at least in the posting that was attached to the petition -- I find it ironic that in one sentence he is disparaging the [c]ourt, but in the next sentence he is saying he won. That kind of doesn't make sense to me, from a logical and common-sense approach. But he has the right to say whatever he wants to about the [c]ourt. I really don't want to spend time on that.N.T. Hearing, 10/30/17, at 6-7.
MS. PAULISICK: Agreed.
THE COURT: But if he is making negative and disparaging remarks about . . . the mother, if that is true, then that would be in violation of the [c]ourt's order and would be concerning to me. And it's not a Petition for Contempt; it's a Petition for Special Relief. So, I just want to give those parameters, that when it comes to him talking about the [c]ourt, the [c]ourt system, et cetera, he is free to say what he wants to say.
MS. PAULISICK: I understand, Your Honor. And that is why this is not a contempt. Because it's more so the impact of what he is posting, and how he is posting it, on the children, their friends, their relatives, their teachers. It's a barrage. And it is having a negative impact on the kids, which is why we're trying to get it to stop.
Mother's counsel proffered the following with regard to Mother's testimony:
MS. PAULISICK: Your Honor, my client, if she were to testify, would testify that [Father] began this shortly after the support conference or -- excuse me - the de novo hearing, which was just a couple of weeks after the custody decision, and that it has been pretty continuous since. He's asked for assistance from the media. He's asked 17 people if they know anyone that could go public with this.
We're not asking him to be prohibited from exercising his free speech, including the very negative postings about me. I'm a big girl. I can take it. And I'm sure they will heighten after this.
THE COURT: Let me just say, that doesn't necessarily -- I don't care what he says about the [c]ourt. I just want to get this on the record. It does not relieve him of perhaps a defamation cause.
MS. PAULISICK: Correct. So far[,] I'm pretty sure everyone knows I'm not a catfish or a bottom feeder. So, I'm okay at this point with not bringing a defamation case.
But the greatest concern and the reason that the first document is attached is, my client will tell you that the children, including their adult daughter, are asked questions by family members, by teachers, by friends, those that are Facebook friends with [Father] or others that he knows, and that the children are impacted by the negative implications, both about their mom and the custody action itself. So it's not just that he is posting things about my client because he's implying them; he is not -- he is not calling her names or doing those sort of things on a consistent basis. What she would say is, it's the constant barrage of information about the ongoing custody case that makes these children still feel like they are in the middle of conflict and it is having an impact, including [G.M.F.], on the first one, saying: The [c]ourt said I'm not worth 50 percent. That's the behavior that we are trying to stop.
And the language that I'm proposing, Your Honor, is very similar to the language that's contained in the PFA orders, that simply states that he is prohibited from posting on social media websites or media websites, directly or indirectly, any remarks, images or pictures of Mother, her immediate[] family and significant other. I do have legal counsel in the Butler County system to the extent any reference involves the custody or support litigation. And I'm only talking there if factual details are being provided. If it's opinion, he is entitled. Father is also prohibited from posting on social media websites pictures of the parties' children to the extent the same is in reference to the custody or support litigation. I'm also asking that [Father] be ordered to six sessions of individual counseling within 60 days and that he file a certificate verifying the counseling. We had originally asked for just a couple. But because [Father's] conduct really has not stopped -- if anything, it has heightened -- he needs to
understand the impact of this type of commentary on the children. So my client would request that he engage in some individual counseling. And I think she would even be willing to participate if [Father] required additional information about how it's impacting the kids, not from a counseling standpoint but from a parental input standpoint.
We are also asking -- because when we initially filed this we were told that [Father] would stop and he has not, we're asking for $500 based on obdurate and vexatious conduct. We are not alleging contempt because I think that it has to be clear and unequivocal, and he knows how to dance around that a little bit. But we are asking for some sanctions so that he understands that if he continues to do this, there will be sanctions that are meaningful.
THE COURT: So, I know we're doing this by proffer, and I will have you colloquy your client in a minute; but I am a little bit unclear about Petitioner's Exhibit 1. Maybe that could just be cleared up for me.
MS. PAULISICK: Yes.
THE COURT: The first page of that - obviously the remainder of the pages look like that they were put on some type of social media.
MS. PAULISICK: I'm sorry, Your Honor. I think it got blown up. I can substitute that page.
THE COURT: I don't know what this page is.
MS. PAULISICK: I think when the copy was made, she might have blown up that part. This is the post on his -
(Tenders document to the [c]ourt)
THE COURT: Thank you.
So, that was put on a social media site?
MS. PAULISICK: Correct.
THE COURT: Okay. Would you please colloquy your client if that's the totality of your evidence today.N.T., 10/30/17, at 8-11.
Mother's counsel then questioned Mother, as follows:
BY MS. PAULISICK:N.T. Hearing, 10/30/17, at 11-12.
Q: [Mother], please state your name for the record.
A: [B.A.F.].
Q: And were you present in the courtroom when I summarized the testimony you would offer today?
A: Yes.
Q: Is that testimony true and correct to the best of your knowledge?
A: Yes.
Q: Are you under the influence of any drugs or alcohol that would limit your ability to give credible testimony today?
A: No.
Q: And is there anything else additional you would like to add other than what I have offered to the [c]ourt?
A: I would like to add that one of my clients was able to see that and comment on it, which I feel impacts my credibility as their accountant who visits their office weekly. I try to keep my personal life away from my work. That's it.
THE COURT: Cross?
MS. BENDIK: I have no questions.
Father's counsel proffered the following with regard to Father's testimony.
MS. BENDIK: I would just summarize his testimony for him. If [Father] was testifying in question-and-answer format, he would indicate that he did stop, other than in this 24-hour period, other than this one singular post that I believe was a meme about Judge Judy yesterday. So, it was not about [Mother]. He is not friends with [Mother]. He is not friends with any of the children on social media. So, these postings are, a majority, about his frustration with the [c]ourt system. And he attempted to agree to go to the counseling and agreed to stop posting on social media about the custody and support proceedings back on September 15th, which then, again, posting a meme about Judge Judy, we don't think is necessarily something that would be in violation of that.N.T. Hearing, 10/30/17, at 12-14.
So, saying that it has continued is, I think, an exaggeration. Although his posting says he's trying to bring in other people, it was actually somebody reported to try to interview him for an article and he refused to comment. It's actually in the newspaper here, and you'll see he's not - he doesn't appear in it. He refused to comment. So he was following that and not airing anything about their custody and support proceedings. There's an article on shared custody in there, and there's no comment from [Father] in there, even though they did attempt to interview him. So, you can review there that you don't see his name mentioned.
So, he did stop. That's the only post that you will see, is in that 24-hour. It's just -- unfortunately, people just kept responding. And [Father], unfortunately, responded to everybody's post in response back to that. But then when the motion came up, we talked about it and he stopped. So, he is willing to agree to a mutual, you know, not posting. But -- you know, that's what he will do at this time. And in talking with him, [Father] believed that the communication -- again, because he believed nobody in his family was seeing it, he didn't believe that was under the [c]ourt [o]rder until we discussed this. Since the [c]ourt [o]rder was communications with [Mother], he thought that was through Our Family Wizard.
THE COURT: Would you colloquy your client?
MS. BENDIK: Sure.
Father's counsel then questioned Father, as follows:
BY MS. BENDIK:
Q: [Father], you've heard what I summarized here for you as if you were testifying in question-and-answer format.
Is everything true and correct?
A: Yes.
Q: Would you like to add anything for the [c]ourt?
A: I said it. It had nothing to do with the de novo hearing. But what it did have to do with, and what set me off, was when I got the decision that I'm still only a 43 percent dad. And the picture [of G.M.F.] holding the fish, it has nothing to do with her. If you look at it, it has my head cut off and it's showing that I am only worth 43 percent. And my face isn't on there because I'm not worth 50. And that's what it clearly shows.
I love my kids. I did nothing wrong. And they were not - I'm not going to let them be denied me being a 50 percent dad. And I've come a long way. You've never seen a guy come this far, spend this kind of money. And I'm not going to stop. I love my kids. I've lost -- thank God I have a wife that has a nice-paying job. I've lost everything. And I said it all. I am more upset with the system than I am with my ex-wife. I think our communication is very good. I brought a tooth in that my kid lost to give to her today. I send my kids home in nice clothes, washed. When they come with their clothes, I wash them, I send them back. I don't want to get off subject too much, but -- I said it, I meant it, and I will continue to fight for my children. And no man should have to do that.
THE COURT: Do you have any questions for [Father]?
BY MS. PAULISICK:
Q: [Father], the post that you posted last night, the Judge Judy meme, specifically references parental alienation, correct?
A: I feel I'm -- yes, that's correct. By 7 percent.N.T. Hearing, 10/30/17, at 14-16.
Q: You feel you are alienated by 7 percent?
A: Yes. I'm alienated by 7 percent. I do homework with my children. I bought a haircut this weekend. Everything. I do it all. I am a good dad. I am 100 percent dad, too. But I deserve 50. Sad.
MS. PAULISICK: Nothing further.
The trial court then made the following statement to the parties and their counsel:
THE COURT: Okay. So, this is pretty clear to me. I'm going to say some things on the record because I feel they need to be on the record. However, I truly believe that nothing I say today is going to impact any changes in [Father], but I'm going to say this so that they are on the record.
[Father], you have every right to say anything that you want to about the [c]ourt system. I, like Ms. Paulisick, have thick skin and big shoulders; and I sleep very comfortably every night with my decisions. My decisions are based upon the facts that are presented and the law that tells me what to do with those facts. We are not a perfect system. I will agree with you on that. But I can honestly say to you with 100 percent confidence that nothing that you have gone through, through this court proceeding from day one till today, has anything to do with your gender. It has to do with facts. And if the facts were reversed, my decision would be reversed. It has nothing to do with gender. I realize that you disagree with that, and you are entitled to your opinion. I would just also note that I always find this fascinating that when a ruling is put down and people are unhappy about it, if they feel that the [c]ourt has committed an error of law, that they don't appeal. You had the right to appeal my decision if you believed that I made an error.
There's a big difference between believing that the [c]ourt made an error in the hearing, or feeling that maybe just in general
the whole system is against you, which while it is not a perfect system, the system is not against dads. It's not against you in particular. So, let's just get down to this: What saddens me the most about this is how you described it. Nothing in my ruling -- nothing in my ruling states that you are a 43 percent dad. The ruling has to do with the amount of parenting time that is distributed between the parties. That has nothing to do with the nature of being a parent. And I set forth in very long detail my findings of why I came to the decision I did, following the law as it is set forth by the legislature. Literally, it breaks my -- it doesn't make me angry. It literally breaks my heart that I am looking at a picture of your daughter on Facebook with these comments.
I really don't care about any of the rest of it. I mean, you know, you have every right to say what your opinion is. But when you put a picture of your young daughter on social media, that anybody in the world can see -- it doesn't matter if you friended your children. This is out there and can never be taken back. You put a picture of your sweet little daughter on social media with all of this ugliness written around it. The fact that you can't see how that is harmful to your child, that's what is concerning to me. The [c]ourt system is not made to fix people. I can't correct somebody's judgment. You know, there are a lot of people out there who do a lot of horrible things to children, and they don't think that they are doing anything wrong. They do protests. They march. They think it's their right to do these things to children. And I am not putting you in that category. I'm just saying that there are a lot of people who do things because they think they're right but it still causes a lot of harm. And that's my concern here. So, I am going to have to take under consideration exactly how I am going to word the order because I want to be very careful to not impair [Father's] right to free speech, while at the same time protecting his children from unnecessary harm. And I just want to say as an aside, if this case were back in front of me to re-look at the custody distribution, I would have to give serious weight to the fact that you would put pictures of your children on an Internet site with this kind of information on it. It's just not good.
I will definitely be issuing an order for therapy. [Father] clearly has a challenge with dealing with his anger. And he can put his anger on whoever he wants to. But there are more healthy ways to deal with being angry. There are more healthy ways to deal with the custody dispute. And my responsibility is to do what is in the best interest of your children both short-term and
long-term. And based upon the tone of your voice today, your demeanor and what you said, I am truly concerned about the well being of your children as they see that part of you. I know that's not all of you. I know that's just a little part of you.
But it's a little part that can do a lot of damage to your children. And I would just ask that you would be open-minded enough to meet with a therapist and to figure out ways to better and more productively express yourself in ways that are not so harming to your children, and to, perhaps instead of being so negative about everything, start looking for the positives. I am very glad to hear you say that you think you've come a long way. I'm very glad if you are better communicating with the children's mother. That is great.
But to put some of this information on, especially - like I said, I haven't read all of Exhibit 1. I don't know what is in there. I am going to have to read through that. But just this front page breaks my heart. I know you don't care about my heart.
[FATHER]: It breaks mine.
THE COURT: But you did it. You chose to do that. And it doesn't change the facts. It doesn't change the outcome. And it's not going to change the outcome to your betterment but maybe only your detriment if you continue this. And if you truly believe that I made an error of law, you had a procedural right to appeal that. You did not. There could be lots of reasons you didn't. But that is now the law and it is your case. And the only way that that's ever going to change is for you to change the facts, not change the way you feel that you were treated, but by looking at what are some of the things that I can do to change myself and my demeanor and my behavior and my tone, and how I'm communicating, so that maybe the next time we come into court the facts are more set up for a 50-50 custody. So, if you really want to make a change in your family and you really want 50 percent custody - I can't promise anything; I could never do that - it's changing your behaviors that would make that difference, not trying to change a court system that, at least in my opinion, was nothing but ever fair to you. You may disagree with that. But we were nothing but fair to you.
And so I just hope that you will take some of that -- be expecting that I will be ordering some therapy here because it is greatly needed.
MS. BENDIK: It's fine. We're in agreement.
THE COURT: I understand that. I understand that you're in agreement. But when I hear [Father] - and by the way, it's not going to be six sessions. It's going to be - I'm going to want a report from the therapist that there's changes being made, that there's progress and that there's improvement. This isn't about marking off a couple boxes and saying, "I did this." That's not the goal here.
And again, I want to be very, very clear. My goal -- I could care less what you say about me. I could care less what you say about the system. I sleep just fine at night. I put out why I made the decision I made, and everybody that comes into this courtroom and leaves is welcome to agree with that or not agree with that. And most people don't. I tell them: If you have to have a third party tell you how to parent, you've already lost before you ever walk in this door. That should be something that you guys should have been able to do before coming to court. Once you come to court, you've already lost because you can't parent. You need a [c]ourt to do it for you.
What I'm trying to say is, you've been treated fairly. But he is still saying to me: I did nothing wrong; I did nothing wrong putting a picture of my daughter like this on social media.
If that is his mindset, we have some work to do. I can guarantee you that if it continues, there will be repercussions. I don't know what those repercussions may be. They might be financial or it might be them filing a modification and you losing even more custody. Those are kind of best-case scenario/worst-case scenario. But I hope for your sake, [Father], and for your children's sake, that you will deal with your anger in a more productive way.
But you cannot be posting things like this about your children and about your family life. I mean, everything just really is not - it's not good judgment. It's not good parenting judgment.
All right. You will get my order and we will go from there. Okay?N.T. Hearing, 10/30/17, at 16-22.
MS. PAULISICK: Thank you, Your Honor. Did you want a copy of the proposed order? I did provide it to --
THE COURT: You can provide it to me.
MS. PAULISICK: Most particularly for the language.
THE COURT: Okay.
MS. PAULISICK: Thank you.
THE COURT: Thank you. That concludes the hearing.
On November 28, 2017, the trial court entered an order providing:
1. Within ten (10) days from the date of this order, . . . [Father] shall enroll in individual counseling. He shall provide to the counselor a copy of [the trial court's] Finding[s] of Fact and Memorandum Opinion dated September 1, 2017, as well as the transcript of the instant hearing and a copy of this Order.
2. Father shall obtain individual counseling to specifically include, but not be limited to, anger management, and how to appropriately communicate with and about Mother so as not to disparage Mother in front of Children and on social media websites.
3. Within ten (10) days of Father's first counseling appointment, Father shall pay for, request, and obtain a copy of this hearing transcript to provide to his counselor.
4. Within ten (10) days of Father's first counseling appointment, Father shall obtain from his counselor written documentation that the counselor received the documents set forth in Paragraph 1 above, and shall provide that documentation to [Mother's counsel,] Attorney Gerri Paulisick.
5. Father shall remain in counseling until discharged by the counselor.
6. Within 45 (forty-five) days of the date of this Order, Father shall obtain from his counselor written documentation of the following;
a) Recommended appointment schedule, i.e., weekly, bi-weekly, etc.;
b) Treatment goals, and
c) Father's compliance with treatment;
d) Verification that the counselor reviewed the provided documentation.
Father shall provide a copy of the documentation to Attorney Gerri Paulisick.
Trial Court Order, 11/28/17, at 1-2.
7. Father is prohibited from posting on social media websites or media websites, directly or indirectly any remarks, images or pictures of the parties' children to the extent the same is in reference to the custody or support litigation;
8. The [trial court] finds Father's behavior to be obdurate and vexatious. Therefore, Father shall pay $500.00 in counsel fees to Mother within thirty (30) days of the date of this Order.
9. Father shall add to his Our Family Wizard account the "tone meter" at his expense for a period not less than one year within ten (10) days of the date of this Order.
On December 27, 2017, Father timely filed his notice of appeal and concise statement of matters complained of on appeal.
The trial court complains that, when Father made his filings, it did not receive a copy of Father's notice of appeal, concise statement, and request for transcripts, and learned of the filings through the court reporter several days later. The trial court also disputes the affidavit of Father's counsel stating that the documents were hand-delivered to the trial court. See Trial Court Opinion, 2/1/18, at 1-2. The trial court cites Pa.R.A.P. 906(a)(2), for the requirement that the appellant is to provide the trial court with copies of the notice of appeal and any request for transcript. Trial Court Opinion, 2/1/18, at 2. Citing Commonwealth v. Mathis , 464 A.2d 362, 367-368 (Pa. Super. 1983), the trial court states that the purpose of the appellate rule is to provide the appellate court with the reasoning of the trial court. Trial Court Opinion, 2/1/18, at 2. The trial court relies on Coffman v. Kline , 167 A.3d 722, 776 (Pa. Super. 2017), for the proposition that we have the discretion to take any appropriate action, including remand to the trial court for the completion of the omitted procedural steps. Here, in the trial court's Rule 1925(a) Opinion the trial court addressed the issues raised in Father's concise statement. Accordingly, we will not remand the matter to the trial court for Father to complete any missing procedural steps.
Father raises the following issues on appeal:
1. [Whether the] trial court abused its discretion and erred as a matter of law in issuing its Order of Court dated November 27, 2017 (filed on the docket on November 28, 2017)[?]Father's Brief at 5.
2. [Whether the] trial court violated the privacy rights of [Father] by ordering individual counseling, to include the requirement to provide counseling documentation to [Mother's] attorney[?]
3. [Whether the] trial court violated the First Amendment rights of [Father] and further erred in restraining the free speech of [Father], violating his constitutional rights under the United States Constitution and the Pennsylvania Constitution[?]
4. [Whether the] trial court erred in awarding counsel fees to [Mother][?]
We note Father's statement of questions involved portion of his brief contains an apparent clerical error, as the third issue stated there is duplicative of the second issue. However, he preserved the third issue discussed in his brief in his concise statement. Accordingly, we do not find that he waived his third issue on appeal for failure to state it in the statement of questions involved. See Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his concise statement of errors complained of on appeal and the statement of questions involved portion of in his brief on appeal); Pa.R.A.P. 1925(b)(4)(vii) (stating, "Issues not raised in the Statement and/or not raised in accordance with this paragraph (b)(4) are waived.").
In custody cases under the Child Custody Act, ("the Act"), 23 Pa.C.S. § 5321-5340, our scope and standard of review are as follows:
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. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
We have stated:
[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. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.Ketterer v. Seifert , 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson v . Beck , 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated the following regarding an abuse of discretion standard:
Although we are given a broad power of review, we are constrained by an abuse of discretion standard when evaluating the court's order. An abuse of discretion is not merely an error of judgment, but if the court's judgment is manifestly unreasonable as shown by the evidence of record, discretion is abused. An abuse of discretion is also made out where it appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence.Id. at 18-19 (quotation and citations omitted).
Regarding the definition of an abuse of discretion, this Court has stated: "[a]n abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused." Bulgarelli v. Bulgarelli , 934 A.2d 107, 111 (Pa. Super. 2007) (quotation omitted).
We will address Father's issues together, as they are interrelated. Father asserts that the trial court abused its discretion in imposing sanctions and requirements on him that went beyond the scope of relief requested by Mother, that did nothing to address the allegations against Father, and that served only to punish Father for his public criticism of the court. Id. at 12-15. In his first issue on appeal, Father argues that the trial court abused its discretion and erred as a matter of law, as it imposed a burden on Father to remedy conduct in which he was never alleged to have engaged, i.e., disparaging Mother and the Children. Father's Brief at 16. Father complains that the trial court order directed him to engage in therapy to address his anger management issues, and to learn how to appropriately communicate with Mother and not to disparage her in front of the Children and on social media websites. Id. at 15. Father complains that, in fact, Mother's counsel made an oral request for attorney's fees at the hearing, and orally expanded the request made in the petition from three to six counseling sessions. Id. at 13.
The trial court encourages us to find that Father's first issue in his concise statement is overly vague and too broad to allow us to rule on it, and, thus, the functional equivalent of no concise statement at all. Trial Court Opinion, 2/1/18, at 3-4 (citing Lineberger v. Wyeth , 894 A.2d 141, 148 (Pa. Super. 2006)). We decline to find Father's first issue waived.
In his second issue, Father argues that the trial court violated his privacy rights by ordering him to engage in individual counseling and provide to Mother's legal counsel documentation from the counseling, including his recommended treatment plan, his treatment goals, and his compliance therewith. Id. at 17. Father contends that the trial court lacked the authority to require Father to engage in anger management and other mental health treatment such as it ordered. Id.
The trial court states that Father's issue implicates the statutory privileges outlined in the Judicial Code, 42 Pa.C.S. § 5944. Citing Gates v. Gates , 967 A.2d 1024 (Pa. Super. 2009), the trial court explains that the provisions of 42 Pa.C.S. § 5944 relate only to confidential communications with psychiatrists or psychologists that were made in the course of treatment. Further, the trial court explains that all the documents it ordered Father to provide to Mother's counsel were not privileged communications pursuant to section 5944. The trial court cites Commonwealth v. T.J.W., 114 A.3d 1098, 1105 (Pa. Super. 2015), positing that medical files containing diagnoses, opinions, evaluations, and treatment plans are not confidential communications from the client and are not protected by privilege. Finally, the trial court states that the court's purpose was not to infringe upon Father's privacy rights, but to ensure that he was compliant with the order by requiring him to provide Mother's counsel with written verification from his counselor.
Father concedes that the trial court is correct that section 5944 applies only to confidential communications between psychiatrists and psychologists that were made in the course of treatment. Father contends that, in Gates , this Court held that an individual's interest in his own mental health records is protected by 50 Pa.C.S. § 7111(a), which provides:
(a) All documents concerning persons in treatment shall be kept confidential and, without the person's written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to section 110;
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.
50 Pa.C.S. § 7111(a) (footnotes omitted). In support of his argument, Father cites M.M. v. L.M., 55 A.3d 1167 (Pa. Super. 2012), in which this Court reversed a trial court order that required a father to turn over mental health records to the mother in a custody action.
In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent. This shall not restrict the collection and analysis of clinical or statistical data by the department, the county administrator or the facility so long as the use and dissemination of such data does not identify individual patients. Nothing herein shall be construed to conflict with section 8 of the act of April 14, 1972 (P.L. 221, No. 63), known as the "Pennsylvania Drug and Alcohol Abuse Control Act."
Father also contends that the preferred method for addressing mental health concerns in custody matters is via a psychological evaluation pursuant to Pa.R.C.P. 1915.8. See Father's Brief, at 19. Rule 1915.8 provides:
Rule 1915.8. Physical and Mental Examination of Persons.
(a) The court may order the child(ren) and/or any party to submit to and fully participate in an evaluation by an appropriate expert or experts. The order, which shall be substantially in the form set forth in Rule 1915.18, may be made upon the court's own motion, upon the motion of a party with reasonable notice to the person to be examined, or by agreement of the parties. The order shall specify the place, manner, conditions and scope of the examination and the person or persons by whom it shall be made and to whom distributed. In entering an order directing an evaluation pursuant to this rule, the court shall consider all appropriate factors including the following, if applicable:
(1) the allocation of the costs, including insurance coverage, if any, attendant to the undertaking of the
evaluation and preparation of the resultant report and court testimony of any appointed expert;
(2) the execution of appropriate authorizations and/or consents to facilitate the examination;
(3) any deadlines imposed regarding the completion of the examination and payment of costs;
(4) the production of any report and of underlying data to counsel and/or any unrepresented party upon the completion of the examination; and
(5) any additional safeguards that are deemed appropriate as a result of the alleged presence of domestic violence and/or child abuse.
Pa.R.C.P. 1915.8.
(b) Unless otherwise directed by the court, the expert shall deliver to the court, to the attorneys of record for the parties, to the counsel of any unrepresented party, and to the guardian ad litem and/or counsel for the child, if any, copies of any reports arising from the evaluation setting out the findings, results of all tests made, diagnosis and conclusions. No reports shall be filed of record or considered evidence unless and until admitted by the court. Any report which is prepared at the request of a party, with or without a court order, and which a party intends to introduce at trial, must be delivered to the court and the other party at least thirty days before trial. If the report or any information from the evaluator is provided to the court, the evaluator shall be subject to cross-examination by all counsel and any unrepresented party without regard to who obtains or pays for the evaluation.
Father asserts that his constitutionally-protected right to privacy and 50 Pa.C.S. § 7111(a) prohibit the trial court from imposing its demands on him regarding counseling, and require that the order regarding counseling be reversed. Id. at 20.
Finally, as part of his second issue, Father cites Pa.R.E. 408, alleging that the trial court improperly noted his willingness to settle out of court by agreeing with Mother that both parties would not post matters to the Internet. Father claims that the rule of evidence precludes the trial court's consideration of his willingness to settle with Mother as a reason to find that the court did not violate his privacy rights with its order. Father's Brief, at 20.
Pa.R.E. 408 provides:
Rule 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible - on behalf of any party - either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction
(1) furnishing, promising, or offering - or accepting, promising to accept, or offering to accept - a valuable consideration in comprising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim.
Pa.R.E. 408.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
In his third issue, Father claims that the trial court order violated his right to freedom of speech under the First and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. Father's Brief at 21-25.
In his fourth issue, Father contends that the trial court abused its discretion in awarding attorney's fees to Mother, as she raised her request for attorney's fees for the first time at the hearing, without prior notice to Father. Id. at 25. Father cites the attorney's fees section of the Custody Act, 23 Pa.C.S. § 5339, as the court's authority for its award of counsel fees. This statute provides:
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.23 Pa.C.S. § 5339.
Father asserts that obdurate conduct is defined as that which is stubbornly persistent in wrongdoing. Father's Brief at 26 (citing In re Estate of Burger , 852 A.2d 385, 395 (Pa. Super. 2004)). Father cites Don Yuan Chen v. Saidi , 100 A.3d 587, 592 (Pa. Super. 2014), as defining vexatious conduct as lacking legal or factual grounds, and for the sole purpose of causing annoyance. Father argues that expressing opinions about the judicial system and one's treatment by the court cannot be characterized as wrongdoing. Father contends that the trial court abused its discretion in finding that he engaged in obdurate and vexatious behavior. He alleges that the trial court's findings that Mother and the Children were affected by his posts is wholly without merit, as neither Mother nor the Children was the subject of the posts. He asserts that there was no evidence that the posts were designed to annoy or harass Mother, and there is no evidence that the Children were negatively affected by Father's posts or even were aware of them. Father complains that the court's imposition of this sanction serves only to chill his constitutional right to criticize the court system and the trial court. Father's Brief at 27.
After a complete review of the record, we conclude that the trial court went well beyond what is permitted by a petition for special relief and that we must vacate the trial court's order.
Pennsylvania Rule of Civil Procedure 1915.13 provides the following:
Rule 1915.13. Special ReliefPa.R.C.P. 1915.13.
At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include, but is not limited to, the award of temporary legal or physical custody; the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a direction that a person post security to appear with the child when directed by the court or to comply with any order of the court.
Rule 1915.13, which is generally reserved for emergency situations, authorizes a court to grant interim, special relief either on application of a party or sua sponte. See Steele v . Steele , 545 A.2d 376, 378 (Pa. Super. 1988) ("Recognizing that circumstances may change abruptly, and to provide for a means to bring about emergency relief that is traditionally available under the writ of habeas corpus, the Rules of Civil Procedure provide for special relief"). See also 23 Pa.C.S. § 5323(b) ("The court may issue an interim award of custody to a party who has standing . . . in the manner prescribed by the Pennsylvania Rules of Civil Procedure governing special relief in custody matters."). In dictum in Choplosky v. Choplosky , 584 A.2d 340, 343 (Pa. Super. 1990), we stated, "'special relief' may in some cases be appropriate (and necessary) where the situation is such that, for example, temporary modification of custody or visitation rights would preserve the well-being of the children involved while the parties prepare to resolve more permanently the question of where and/or with whom the children should remain." See Steele , supra at 378 (even though a technical violation for trial court to modify custody arrangements without petition for modification before it, trial court can make temporary modifications when best interests of child require it).
Here, the trial court was not acting to grant temporary custodial relief. Rather, although the trial court purported not to be holding a custody modification or a contempt proceeding, the trial court order on appeal does modify the custody order entered on September 1, 2017. It orders Father to engage in certain activities for his failure to abide by the provisions in the September 1, 2017 order regarding disparagement of the other party. Importantly, the order directs Father to engage in individual counseling until he is discharged by the counselor. Such a direction is not necessarily temporary in nature. Additionally, the trial court permitted Mother to make an oral motion for attorney's fees at the hearing, and granted said motion.
We find that the trial court's procedural violations resulted in a deprivation of Father's guarantee to due process by modifying the underlying custody order and sanctioning him with attorney's fees without the trial court holding the proper hearings on these matters with the appropriate standards of review. In P.H.D. v. R.R.D., 56 A.3d 702, 708 (Pa. Super. 2012), we stated, "The custody court does not possess some ongoing, continuous supervisory role over the life of a family, however broken that family may be. Rather, the court's jurisdiction is triggered only when invoked, and then only upon proper petition and notice." We, therefore, must vacate the portion of the order purporting to be a "clarification", but in actuality is a custody modification ordered without a proper petition for modification where the father had no notice that modification would be at issue at the hearing.
Accordingly, we vacate the trial court's order and remand the matter to the trial court. If Mother continues to seek the relief she requested in the petition for special relief and at the hearing, she must file the proper petition(s) in order for the trial court to afford Father due process.
Order vacated. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018