Opinion
569 EDA 2022 J-A17004-22
10-07-2022
RANDY SCHOCH v. LISETTE PEREZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 14, 2022 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2016-62078
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
PANELLA, P.J.
Lisette Perez ("Mother") appeals from the February 14, 2022 order holding her in contempt for failure to comply with a previous custody order issued on May 24, 2021. After careful review, we affirm.
Given our disposition of this appeal, we need not dwell on the extensive factual and procedural background. We merely note that Mother and Randy Schoch ("Father") have been engaged in protracted litigation over the custody of their natural child ("Child"), who was born in 2011. The primary source of dispute arises from the fact that Father is estranged from Child and is seeking to establish a relationship. Mother strenuously objects to any effort that furthers Father's goal.
After several rounds of failed attempts at fostering a relationship between Father and Child, the trial court held a hearing on March 16, 2021. Following that hearing, the court docketed a "Domestic Court Sheet" with a written "interim order" holding Mother in contempt and listing requirements for Child's therapy as well as Mother and Father's separate therapies. See Domestic Court Sheet, 3/16/21. Mother filed an appeal from this docket entry on April 4, 2021, which this Court docketed at 799 EDA 2021. In the concise statement of errors complained of on appeal Mother attached to the notice, she raised 18 issues, including challenges to the finding of contempt as well as challenges to the modification of the custody orders.
This Court subsequently issued an order finding that the "Domestic Court Sheet" was not a proper order and directed the trial court to file a proper order that included "the entire disposition from the March 16, 2021 hearing." Schoch v. Perez, 799 EDA 2021 (Pa. Super. filed May 10, 2021) (unpublished order). The order further noted that the appeal, "filed prior to the entry of the March 16, 2021 order on the docket, will be treated as timely filed." Id. (citing Pa.R.A.P. 905(a)(5).
While the March 16, 2021 order is described as an "interim order," and therefore interlocutory, it was final as to the trial court's finding of contempt and imposition of a sanction upon Mother. See In re. C.W., 960 A.2d 458, 460 n.1 (Pa. Super. 2008). And while the trial court suspended its sanction of 30 days' incarceration, it immediately awarded Father attorney's fees in conjunction with its finding of contempt.
Our Rules of Appellate Procedure state that once "an appeal is taken … the trial court … may no longer proceed further in the matter." Pa.R.A.P. 1701(a). This Court has held that the stay imposed by Rule 1701 deprives the trial court of its jurisdiction to proceed further in the matter after an appeal has been filed. See In re J.A., 107 A.3d 799, 809 (Pa. Super. 2015). In turn, "an action taken by a court without jurisdiction is a nullity." Mischenko v. Gowton, 453 A.2d 658, 660 (Pa. Super. 1982). While a trial court has the power to take certain explicitly delineated actions after an appeal has been filed, a "major substantive change, such as the total withdrawal of an order relative to a motion of record" does not qualify as an exception to Rule 1701(a)'s stay. Manack v. Sandlin, 812 A.2d 676, 682 (Pa. Super. 2002). Additionally, a trial court may not discontinue a case "until [it receives] proper notice that all appeals pending in this Court have been discontinued." Estate of Paterno v. National College Athletic Association (NCAA), 168 A.3d 187, 202-03 (Pa. Super. 2017).
The J.A. panel held that dependency courts retain jurisdiction, despite Rule 1701, for further action taken in the best interest of the dependent child. See id., at 809 (citing 42 Pa.C.S.A. § 6351). We take no position on whether the same policy considerations apply in custody matters, as the issue is not squarely before us and has not been briefed by the parties. While some of the issues raised in Mother's appeal docketed at 799 EDA 2021 could be classified as concerning the best interests of Child, many are not clearly relevant to Child's best interests and concern issues related to an indirect criminal contempt of PFA proceeding initiated by Mother's allegations that Father knowingly violated a temporary PFA order by contacting her about custody issues pursuant to the existing custody order. The trial court here found that Mother had misled Philadelphia authorities about service of the PFA order.
On May 24, 2021, the parties appeared before the trial court with a proposed stipulated order to settle the case. Of direct relevance to our present disposition, the stipulated order directed Mother to withdraw her appeal at 799 EDA 2021 within five days. Further, the order vacated all prior orders in this matter except for certain provisions of a September 23, 2020 order. Finally, the order indicates that it "resolves all pending matters before this Court." Upon the praecipe of Mother's counsel, this Court discontinued the 799 EDA 2021 appeal on May 25, 2021.
This Court did not discontinue the appeal at 799 EDA 2021 until May 25, 2021. Under Pa.R.A.P. 1701, the trial court was without jurisdiction to enter the May 24, 2021 order. See In re J.A., 107 A.3d at 809. As such, the May 24, 2021 order is a nullity. See Mischenko, 453 A.2d at 660.
As noted at the start, this appeal concerns a subsequent order finding Mother in contempt of the May 24, 2021 order. We review a contempt order for an abuse of discretion. See Orfield v. Weindel, 52 A.3d 275, 278 (Pa. Super. 2012). "The court abuses its discretion if it misapplies the law or exercises its discretion in a manner lacking reason." Id. (citations omitted). "It is impossible to hold someone in contempt of an order that does not exist." Kuppel v. Auman, 529 A.2d 29, 31 (Pa. Super. 1987). Given that the May 24, 2021 order is a nullity, it was "impossible" for the trial court to find Mother in contempt of that order.
However, while the trial court could not find Mother in contempt of the May 24, 2021 order, it does have the power to find Mother in contempt of the May 24, 2021 stipulation between the parties on those issues that directly pertained to the best interests of Child. See Huss v. Weaver, 134 A.3d 449, 455 (Pa. Super. 2016) (en banc) (holding that while custody agreements do not bind a court, a court may enforce the agreement if the agreement is consonant with the best interests of the child). In contrast, the trial court has no contempt power to enforce portions of the agreement that relate solely to disputes between the parents.
The February 14, 2022 order does not explicitly set forth the portions of the May 24, 2021 order the court found that Mother willfully violated. In its opinion on appeal, however, the trial court does specify that the contempt finding is based solely on Mother's failure to ensure Child's participation in therapy. See Trial Court Opinion, 3/18/22, at 15. Further, the hearings on Father's contempt petition focused almost exclusively on Mother's compliance with the requirement for Child to participate in therapy with a goal towards reunification with Father.
We note that the March 16, 2021 "interim order" also required Mother to ensure Child's participation in therapy with the goal of eventual reunification with Father.
Since the May 24, 2021 order is, in fact, identical to the May 24, 2021 stipulated agreement between the parties, we see no due process violation inherent in the trial court enforcing the stipulation rather than the order. Additionally, while the May 24, 2021 order is a nullity, Mother has never challenged the validity of the underlying stipulation and has acknowledged its authority.
Under these circumstances, the improper entry of the May 24, 2021 order constitutes a mere technical mis-step. The stipulation and the order are identical in terms, and analysis of the stipulation is the same as analysis of the order. In the interest of judicial economy, we treat the trial court's finding of contempt as based on the stipulation. Similarly, Mother's arguments against the order work equally as well as arguments against the terms of the stipulation.
And, after reviewing Mother's arguments on appeal, we conclude that the thorough opinion entered by the trial court adequately addresses Mother's issues. We therefore adopt the trial court's reasoning as our own. See Trial Court Opinion, 3/18/22, at 10-27 (opining that Mother's repeated failures to ensure Child's participation in therapy, combined with her shifting rationales for such failures, and testimony of Child's service providers, supported a finding that Mother willfully disregarded the requirement to ensure Child's participation; concluding that the court did not abuse its discretion in preventing Child's therapist from testifying, where the therapist objected to testifying absent Father's consent to her testimony; finding Mother's hearsay issue waived for failing to specify in her Rule 1925(b) statement the testimony and documents at issue; noting that the only basis for the finding of contempt was Mother's failure to ensure Child participated in therapy; opining that the court was not required to assess Mother's ability to pay the attorney's fees sanction prior to attempting to enforce the sanction; and noting the multiple deficiencies in the mental health evaluation performed while Mother was imprisoned).
In her brief, Mother also argues that the trial court imposed an unconstitutional "gag order" when it directed Mother and her family to refrain from discussing Mother's incarceration with Child. The trial court does not address this argument, because this argument is not fairly suggested by Mother's Rule 1925(b) statement. This issue is therefore waived as well. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that issues not raised in a 1925(b) statement are waived).
Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.