Opinion
1514 WDA 2023 J-S22029-24
10-01-2024
WILLIAM HUGHES WALKER, JR. v. JEANNE MARIE WALKER Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered November 28, 2023 In the Court of Common Pleas of Allegheny County Civil Division at No(s): No. FD-15-007536-017
Benjamin D. Kohler, Esq.
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
MEMORANDUM
LANE, J.
Jeanne Marie Walker ("Mother") appeals from the order which, inter alia, awarded William Hughes Walker, Jr. ("Father"), sole legal custody of their two minor children, A.W. (born in 2009) and G.W. (born in 2012) (collectively, "the Children") for the limited purpose of obtaining passports, and awarded Father $1,500 in counsel fees as a sanction against Mother. We affirm in part and vacate in part.
A detailed recitation of the underlying factual history is not necessary for this appeal. We briefly note that the parties have exercised shared legal custody of the Children since August 2, 2017, pursuant to an order that required them to agree in advance for passport applications and international travel. In June 2023, Father sent Mother an email, formally requesting her consent to obtain passports for the Children. Therein, Father noted that he had been asking for Mother's consent for years, to no avail, and that he preferred to obtain her consent rather than being forced to undertake the expense of seeking a court order permitting him to obtain the passports. Mother responded by email that she opposed the securing of passports for the Children and would not provide the requested consent. In August 2023, Father filed a petition for special relief seeking an order granting him sole legal custody for the limited purpose of obtaining passports for the Children so that he could travel with them internationally.
Because the Children are under the age of sixteen, the State Department requires both parents to consent to the issuance of passports. See https://travel.state.gov/content/travel/en/passports/need-passport/under-16.html.
Mother objected to Father obtaining the passports on the basis that she does not support international travel. At Mother's request, the trial court entered an order scheduling a hearing via remote video for November 2, 2023. Therein, the court notified the parties that Father's request appeared to be reasonable and that "[s]hould the [c]ourt determine [Mother's] opposition not be reasonable and lack factual underpinnings or bases, then [Father] shall be reimbursed all legal fees incurred as a result of [Mother's] failure to consent to the obtaining of passports by the [C]hildren." Trial Court Order, 8/29/23, at 1.
In his petition for special relief, Father noted that Mother herself has traveled internationally to Mexico.
Prior to the hearing, Father submitted his pretrial statement, which included a request for counsel fees in the amount of $2,200. In her pretrial statement, submitted to the trial court the day before the hearing, Mother indicated that she had withdrawn her opposition, and was willing to provide her consent and to cooperate with Father in obtaining passports for the Children.
On the day of the hearing, Father appeared in-person in court with his attorney. Mother appeared at her attorney's office to participate via remote video. At the beginning of the hearing, the trial court requested that Mother and Father leave the proceedings so that the trial court could speak with counsel. Counsel for Mother advised the trial court that Mother had withdrawn her opposition to the Children having passports and was now willing to work with Father to secure the passports for the Children. See N.T., 11/2/23, at 5. However, Mother's counsel explained that because both Mother and Father wished to retain the passports, the parties nonetheless required the trial court to decide the discrete issue of which parent would retain the passports. See id. Counsel for Mother conceded that the purpose of the hearing was to determine whether the passports could be obtained, and that the question of which parent would retain the passports could have been resolved in motions court without need of a hearing. See id.
At the end of the discussion with counsel, the trial court did not state a decision on the record. Instead, the trial court informed counsel that it would "issue an [o]rder just indicating our conversation here, that [M]other was in agreement and that per the [c]ourt in reviewing the information, that we agree that [F]ather shall keep possession, then, of the passports thereafter." Id. at 9. The trial court then asked the parties to submit "any requests for fees or sanctions . . . to chambers, and [it would] review that also, then, before issuing the [o]rder." Id. On November 28, 2023, the trial court entered an order granting Father sole legal custody of the Children for the limited purpose of obtaining passports. The order also indicated that Father would retain possession of the passports, provided for the manner in which the parties were to communicate regarding anticipated international travel with the Children, and imposed sanctions against Mother in the amount of $1,500 for Father's counsel fees.
Mother timely filed a notice of appeal, and both she and the trial court complied with Pa.R.A.P. 1925.
Mother presents the following issues for our review:
1. Whether the trial court abused its discretion and committed an error of law when the trial court issued an order of court granting [Father] sole legal custody to obtain a passport for [the C]hildren, when [Mother] agreed to cooperate with [Father] to obtain passports and without first conducting an evidentiary hearing?
2. Whether the trial court abused its discretion and committed an error of law when the trial court entered an order awarding [Father] $1,500 in counsel fees and making a finding of obdurate and vexatious conduct without first conducting an evidentiary hearing?Mother's Brief at 9 (unnecessary capitalization omitted).
In her first issue, Mother argues that the trial court erred in failing to conduct an evidentiary hearing before issuing an order granting Father sole legal custody for the purpose of obtaining passports for the Children. We consider this issue mindful of our well-settled standard of review:
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.V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
Pursuant to the Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340, when a trial court orders a form of custody, the best interest of the child is paramount. See S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014). Section 5328(a) sets forth sixteen factors that the trial court must consider when awarding custody or changing a form of custody. See 23 Pa.C.S.A. § 5328(a)(1)-(16). Mere recitation of the statute and consideration of the section 5328(a) factors en masse is insufficient. See S.W.D., 96 A.3d at 401. Rather, the court must set forth its mandatory assessment of the sixteen factors prior to the deadline by which a litigant must file a notice of appeal. See C.B. v. J.B., 65 A.3d 946, 950 (Pa. Super. 2013).
Mother asserts that the trial court abused its discretion by entering an order granting Father sole legal custody for the limited purpose of obtaining passports for them. Mother points out that, on the day set for the hearing, both parties acknowledged that Mother had agreed that she would cooperate with Father to obtain the passports. Mother additionally points out that, during the discussion between the trial court and counsel, Mother's counsel informed the court, "We agree. We're going to cooperate. We're going to sign everything we need to sign. They're going to get passports." Mother's Brief at 16 (quoting N.T., 11/2/23, at 5). Mother argues that, despite her agreement that she would cooperate in obtaining passports for the Children, the trial court entered an order granting Father sole legal custody for this purpose. According to Mother, the parties settled their dispute prior to the hearing when Mother agreed to permit the Children to obtain passports and agreed to cooperate in obtaining them.
Mother additionally argues that the trial court erred by failing to conduct an evidentiary hearing before entering its custody order. Mother points out that, although she did not expect the trial court to conduct an evidentiary hearing because the controversy had been resolved in Father's favor, "[i]t was inconceivable to Mother that the trial court would issue an order changing legal custody when she had already agreed to the relief sought." Mother's Brief at 19 (unnecessary capitalization omitted). Mother argues that, as in other discrete legal custody issues, such as legal custody for school choice, the trial court must still conduct a hearing and take testimony to determine whether a change in legal custody is in the Children's best interests after considering the factors set forth in 23 Pa.C.S.A. § 5328(a). Mother points out that, in the instant case, no evidence was presented nor were any findings made as to what was in the Children's best interests.
Mother additionally argues that the trial court was biased, and that the custody order was entered because of such bias. However, this issue was not raised in the trial court; therefore, Mother failed to preserve it for our review. See Pa.R.A.P. 302(a) (providing that issues not raised in the trial court are waived and cannot be raised for the first time on appeal).
In explaining the basis for its custody ruling, the trial court indicated that Mother's counsel expressly consented to its decision to enter an order granting Father sole legal custody for the purpose of obtaining the passports. See Trial Court Opinion, 1/23/24, at unnumbered 1. The court stated, "[the trial court] specifically told Mother's counsel that [it] decided to award Father sole legal custody for the purpose of obtaining passports and that an [o]rder would be issued to that effect. Mother's counsel agreed on the record to this outcome!" Id. (emphasis in original).
Our review of the transcript does not support the trial court's determination. At no point during its discussion with counsel did the trial court indicate that it would enter an order granting Father sole legal custody, nor did Mother's counsel agree to the entry of such an order. Indeed, Mother's counsel argued that Father did not need sole legal custody and that his petition was essentially moot, given that Mother had withdrawn her opposition and was willing to cooperate with Father to obtain the passports. See N.T., 11/2/23, at 4-5. Consequently, we conclude that the trial court abused its discretion in awarding sole legal custody to Father on the basis of Mother's purported consent to the change in custody, which is not borne out by the record.
Moreover, the trial court was required to consider the relevant section 5328(a) factors before modifying legal custody. However, the trial court failed to address those factors during its discussion with counsel, or in the subject order. While the trial court ultimately filed a written opinion, that opinion also failed to address the relevant custody factors. Presumably, the trial court determined that consideration of the section 5328(a) custody factors was unnecessary, given Mother's purported consent to the entry of an order awarding Father sole legal custody. However, as discussed above, Mother's counsel did not consent to any such order. Accordingly, we are constrained to vacate the first paragraph of the November 28, 2023 order which awarded sole legal custody to Father for the limited purpose of obtaining passports for the Children.
While we could remand for the trial court to consider the section 5328(a) custody factors before entering a further custody order for Father to obtain passports for the Children, we decline to do so. As a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot. See M.B.S. v. W.E., 232 A.3d 922, 927 (Pa. Super. 2020). An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case. See id. An issue before a court is moot if in ruling upon the issue, the court cannot enter an order that has any legal force or effect. See id. Here, Father has indicated in his brief that he has already obtained passports for the Children. See Father's Brief at 10. Thus, his need for an order granting sole legal custody is moot.
By vacating only the discrete portion of the November 28, 2023 order which awarded Father sole legal custody, we leave intact the remaining portions of that order which do not implicate custody or modify the preexisting custody order of August 2, 2017, which remains binding on the parties. Paragraphs two through five of the November 28, 2023 order direct the conduct of the parties in relation to securing the documentation needed to obtain the passports, communication regarding anticipated international travel, and retention of the passports by Father, all of which are matters ancillary to custody and which do not require consideration of the section 5328(a) custody factors. See M.O. v. J.T.R., 85 A.3d 1058, 1062-63 (Pa. Super. 2014) (explaining that where the trial court did not make an award of custody, but merely modified a discrete issue related to custody, it was not bound to address the sixteen statutory factors in determining the children's best interest).
In her second issue, Mother faults the trial court for sanctioning her $1,500 in counsel fees without conducting an evidentiary hearing. We review an award of counsel fees for an abuse of discretion. See Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007). If the record supports a trial court's finding of fact that a litigant violated the conduct provisions of the relevant statute providing for the award of attorney's fees, such award should not be disturbed on appeal. See Lucchino v. Commonwealth, 809 A.2d 264, 269-70 (Pa. 2002).
Pursuant to 42 Pa.C.S.A § 2503(7), a court may award attorney's fees as a sanction if it is shown that the other party's conduct during the pendency of a matter was dilatory, obdurate, vexatious, or in bad faith. See 42 Pa.C.S.A § 2503(7); see also Kulp v. Hrivnak, 765 A.2d 796, 799 (Pa. Super. 2000) (explaining that section 2503(7) empowers courts to require a party to pay another participant's counsel fees when a party's conduct during the pendency of the action is vexatious, obdurate, or dilatory). However, any award of counsel fees pursuant to section 2503(7) must be supported by a trial court's specific finding of such conduct. See Kulp, 765 A.2d at 799. Generally, in considering a motion to award counsel fees under section 2503, an evidentiary hearing is required. See Sutch v. Roxborough Mem'l Hosp., 142 A.3d 38, 69 (Pa. Super. 2016). However, where the facts necessary for a trial court to find dilatory conduct are admitted and undisputed, no evidentiary hearing is necessary. See Kulp, 765 A.2d at 800 (concluding that no evidentiary hearing was required because the facts necessary for the trial court to find dilatory conduct on the part of appellants were admitted and undisputed).
Here, Mother concedes that she objected to Father's request for consent to obtain passports for the Children, and that, upon the filing of his petition for special relief, she requested that the trial court schedule the matter for a hearing. See Mother's Brief at 15. Mother further concedes that, in granting her request for a hearing on the matter, the trial court explicitly warned her that Father's request appeared to be reasonable and that "[s]hould the [c]ourt determine [Mother's] opposition not be reasonable and lack factual underpinnings or bases, then [Father] shall be reimbursed all legal fees incurred as a result of [Mother's] failure to consent to the obtaining of passports by the [C]hildren." Id. at 17 (quoting Trial Court Opinion, 3/4/24, at unnumbered 3). Mother does not dispute that, in the two months prior to the hearing, she failed to present any good faith, factual reasons for opposing Father's petition for special relief. Moreover, Mother admits that on the eve of the hearing, she finally agreed to cooperate with Father to obtain passports for the Children. See Mother's Brief at 10, 15, 23.
Nevertheless, Mother attempts to characterize the award of counsel fees as a punishment levied solely against her for what she labels as "a two-sided conflict" regarding which parent would retain the passports. Id. at 24. According to Mother, "Father could have agreed to permit Mother to retain the passports, but he chose to litigate instead." Id. Mother maintains that she is the primary custodial parent and there was nothing inherently wrong with her request to keep the passports. Mother contends that the trial court could not award counsel fees to Father without an evidentiary hearing to determine whether she conducted herself vexatiously, obdurately, or dilatorily in relation to the passport retention issue. Mother asserts that, because the trial court took no testimony on the issue, it was unable to determine whether Mother's position that she should keep the passports rose to the level of obdurate and vexatious conduct.
Contrary to Mother's assertions otherwise, the trial court awarded counsel fees to Father not because of Mother's insistence on retaining the passports, but solely because of her dilatory, vexatious, and bad faith opposition to Father's simple request to obtain passports for the Children until the eve of the hearing. See Trial Court Opinion, 3/4/24, at unnumbered 4-5. The trial court explained its rationale for awarding Father counsel fees as follows:
Here, without any justification whatsoever, Mother forced Father to incur counsel fees so that [the Children] could obtain passports. Mother's conduct embodies the dictionary definition of "obdurate." All Father wanted was passports. Yet, Mother dragged him into a [h]earing, requiring him, in essence, to pay a "tax" of $1[,]500 to acquire passports for his children. Once that [h]earing ensued, Mother voiced no opposition to what Father wanted in the first instance. Mother could have agreed to this in August or earlier. From the moment the [h]earing was scheduled, Mother was on notice that mere "principled" opposition divorced from facts could result in sanctions being levied against her.Id. at 6.
We discern no abuse of discretion by the trial court in awarding counsel fees to Father without conducting a hearing. The record supports the trial court's specific finding that Mother engaged in dilatory, obdurate, or vexatious conduct by unreasonably withholding her consent for the Children's passports until the eve of the hearing. See Kulp, 765 A.2d at 800. The trial court properly exercised its discretion regarding Mother's actions, which were admitted and undisputed, and determined that sanctions were warranted. Consequently, we affirm the trial court's award of counsel fees pursuant to section 2503(7).
In sum, we vacate the first paragraph of the November 28, 2023 order which awarded Father sole legal custody of the Children for the limited purpose of obtaining passports. We affirm all remaining aspects of the order.
Order affirmed in part and vacated in part. Jurisdiction relinquished.
PJE Panella joins the memorandum.
PJE Bender concurs in the result.
Judgment Entered.