Opinion
J-S01032-16 No. 2573 EDA 2015
02-18-2016
L.S. Appellant v. S.C. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated July 15, 2015
In the Court of Common Pleas of Delaware County
Domestic Relations at No(s): 2009-011738 BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, L.S. ("Father"), appeals from the order entered in the Delaware County Court of Common Pleas, which denied his petitions to enforce South Carolina's contempt orders against S.C. ("Mother") and to change venue. We affirm.
The relevant facts and procedural history of this case are as follows. Mother and Father are the biological parents of two children, L.T.S., born May 1997, and C.M.S., born June 1998 ("Children"). On August 22, 2003, Mother and Father divorced pursuant to a Richland County, South Carolina divorce decree, which contained a custody agreement ("Custody Agreement") entered into by consent of all parties. The Custody Agreement gave the parties shared legal custody and set forth a detailed physical custody schedule in which Mother had primary physical custody, subject to Father's periods of partial physical custody. The Custody Agreement also stated that the parties must file all actions related to the enforcement of the Custody Agreement in Richland County, South Carolina. Following the divorce, Mother moved with Children to Delaware County, Pennsylvania.
After Father filed several rules to show cause why Mother was not in contempt of the Custody Agreement, the South Carolina court found Mother in contempt on five separate occasions. First, on September 20, 2010, the South Carolina court entered the first contempt order against Mother. In it, the court sentenced Mother to a term of six months' incarceration and instructed that Mother could purge the contempt finding by paying Father $5,000.00 by March 20, 2011. The first contempt order further stated that failure to pay this amount to Father in a timely manner would result in the issuance of a bench warrant for Mother's arrest. Next, on November 12, 2010, the South Carolina court entered the second contempt order against Mother. In it, the court sentenced Mother to a term of six months' incarceration and instructed that Mother could purge the contempt finding by paying Father $3,302.52 by May 12, 2011. The second contempt order further stated that failure to pay this amount to Father in a timely manner would result in the issuance of a bench warrant for Mother's arrest. Again, on January 5, 2011, the South Carolina court entered the third contempt order, dated January 4, 2011, against Mother. In it, the court directed the Clerk of Court to issue a bench warrant for Mother's arrest to serve a term of six months' incarceration and instructed that Mother could purge the contempt finding by paying $1,500.00 to the Clerk of Court of Richland County, South Carolina. Then, on March 25, 2011, the South Carolina court entered the fourth contempt order against Mother. In it, the court directed the Clerk of Court to issue a bench warrant for Mother's arrest to serve a term of six months' incarceration consecutive to any previously imposed sentences for contempt. Finally, on June 7, 2011, the South Carolina court entered the fifth contempt order, dated May 31, 2011, against Mother. In it, the court sentenced Mother to a term of six months' incarceration and instructed that Mother could purge the contempt finding by paying $750.00 to the Clerk of Court of Richland County, South Carolina and $202.35 to Father within thirty days of the contempt order. The fifth contempt order further stated that failure to pay these amounts in a timely manner would result in the issuance of a bench warrant for Mother's arrest. Mother failed to satisfy any of the purge conditions contained in the contempt orders and Richland County, South Carolina issued bench warrants for Mother's arrest.
On August 22, 2011, the South Carolina court entered an order in which it relinquished jurisdiction with respect to enforcement of the Custody Agreement to Delaware County, Pennsylvania. The South Carolina court cited as its reasons for relinquishing jurisdiction, its inability to enforce the Custody Agreement and the contempt orders. Meanwhile, in Pennsylvania, Mother filed a petition to modify custody in Delaware County, Pennsylvania. The Pennsylvania court ultimately awarded Mother sole physical and legal custody of the Children. On May 9, 2012, Richland County, South Carolina recalled its outstanding bench warrants for Mother's arrest. Then, after a hearing on May 14, 2012, the Pennsylvania court gave full faith and credit to the South Carolina contempt orders and the South Carolina order relinquishing jurisdiction to Pennsylvania by order of May 23, 2012.
On June 7, 2013, in Pennsylvania, Father filed a petition to enforce the South Carolina contempt orders against Mother. On February 24, 2014, Father filed a petition to change venue. On February 18, 2015, the Pennsylvania court issued an order in which it recused the Delaware County bench and reassigned the matter to a Chester County judge. On April 27, 2015, the Pennsylvania court held a hearing on Father's petition to enforce the South Carolina contempt orders and Father's petition to change venue. Mother did not attend the hearing. The court denied both of Father's petitions on May 27, 2015, but improperly docketed the order on May 29, 2015, to a separate docket involving the parties. On July 15, 2015, the court entered its May 27, 2015 order on the correct docket, and allowed Father to file a timely notice of appeal from that later date. On August 12, 2015, Father timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
Father raises the following issues for our review:
DID THE TRIAL COURT ERR IN DE FACTO VACATING THE DELAWARE COUNTY, PENNSYLVANIA ORDER OF MAY 23,
2012—WHICH CONFIRMED AND GAVE FULL FAITH AND CREDIT TO THE RICHLAND COUNTY, SOUTH CAROLINA ORDERS OF COURT DATED SEPTEMBER 20, 2010, NOVEMBER 12, 2010, JANUARY 4, 2011, MARCH 25, 2011, MAY 31, 2011, AND AUGUST 22, 2011—IN VIOLATION OF 23 PA.C.S.A. §§ 5443(A) AND (B), 5446(A), AND 5453?(Father's Brief at 6-7).
DID THE TRIAL COURT ERR IN FAILING TO ENFORCE THOSE PORTIONS OF THE SOUTH CAROLINA ORDERS DATED SEPTEMBER 20, 2010, NOVEMBER 12, 2010, JANUARY 4, 2011, MARCH 25, 2011, AND MAY 31, 2011: FINDING [MOTHER] IN CIVIL CONTEMPT; SENTENCING [MOTHER] TO INCARCERATION; AND SETTING PURGE CONDITIONS, INCLUDING COMPENSATION AND RESTITUTION TO [FATHER]?
DID THE TRIAL COURT ERR IN FAILING TO FIND [MOTHER] IN CONTEMPT OF THE ORDERS DATED SEPTEMBER 20, 2010, NOVEMBER 12, 2010, JANUARY 4, 2011, MARCH 25, 2011, MAY 31, 2011[?]
DID THE TRIAL COURT ERR IN FAILING TO GRANT COUNT VII OF [FATHER'S] PETITION TO ENFORCE, WHEREIN [FATHER] INCURRED SIGNIFICANT COUNSEL FEES AND EXPENSES IN THE COURSE OF SEEKING ENFORCEMENT OF ORDERS OF COURT, AND WHERE [MOTHER] PROFFERED NO LEGALLY COGNIZABLE DEFENSE TO THE ENFORCEMENT THEREOF?
DID THE TRIAL COURT ERR IN FAILING TO GRANT COUNT VIII OF [FATHER'S] PETITION TO ENFORCE, WHERE [FATHER] REQUESTED A TRANSFER OF PHYSICAL AND LEGAL CUSTODY OF THE SUBJECT CHILDREN AS A SANCTION FOR [MOTHER'S] NONCOMPLIANCE WITH PRIOR COURT ORDERS?
After a thorough review of the record, Father's brief, the applicable law, and the well-reasoned opinions of the Honorable Thomas G. Gavin, we conclude Appellant's issues on appeal merit no relief. The trial court opinions comprehensively discuss and properly dispose of those questions. ( See Opinion in Support of Denial of Father's Petitions, filed May 29, 2015, at 5-9; Trial Court Opinion, filed September 14, 2015 at 3-6) (finding: (issues 1-3) Father's motivation to enforce contempt incarceration of Mother is end-run around Delaware County order, which granted Mother sole custody of Children; additionally, enforcement of South Carolina contempt orders is not permitted because South Carolina relinquished jurisdiction to Pennsylvania on August 22, 2011, and recalled bench warrants for Mother's arrest on May 9, 2012, prior to Pennsylvania's May 23, 2012 order, which gave full faith and credit to South Carolina orders; because no bench warrants existed when Pennsylvania gave full faith and credit to South Carolina orders, Pennsylvania court has no authority to arrest or incarcerate Mother; if Delaware County effectuated Mother's arrest without current bench warrants, that would result in false imprisonment of Mother; even if current bench warrants did exist, Delaware County could only detain Mother pending extradition to South Carolina; Richland County, South Carolina has indicated its lack of desire to extradite Mother based on its relinquishment of jurisdiction; further, under 42 Pa.C.S.A. § 4306(f), full faith and credit does not apply to order of contempt, which provides for term of incarceration; Father's assertion that court can enforce payment of purge money included in South Carolina contempt orders is also incorrect; time periods for payment of purge amounts have long passed and timeframe in which Mother would face bench warrant has expired; moreover, purge amounts are not "foreign judgments" entitled to full faith and credit because they were not reduced to monetary judgments; therefore, court correctly denied Father's petition to enforce South Carolina contempt orders; (issue 4) court determined Mother's actions in case were not arbitrary or vexatious and do not justify order directing Mother to pay Father's counsel fees and expenses incurred in filing current petitions; court noted that Father has brought majority of petitions in this action, Mother did not bring current action before court, and Mother has not brought many petitions before court in this action; additionally, Mother's alleged willful disregard for South Carolina contempt orders is too remote in time because contempt orders are from 2010 and 2011; since that time, South Carolina has recalled bench warrants for Mother's arrest, relinquished jurisdiction, and demonstrated its unwillingness to extradite Mother; under these circumstances, there are insufficient facts to find that Mother's conduct requires imposition of attorney's fees; (issue 5) because court was unable to enforce South Carolina contempt orders and incarcerate Mother, transfer of custody to Father while Mother is incarcerated is moot; court also notes its discomfort with Father's attempt to use transfer of custody as sanction for civil contempt because it does not serve best interests of Children; therefore, court properly denied Father's request for transfer of custody as sanction for Mother's non-compliance with South Carolina contempt orders). Accordingly, we affirm on the basis of the trial court's opinions.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/18/2016
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