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[U] D.M. v. D.M.

Superior Court of Pennsylvania

February 4, 2014

D.M., D.M.M. AND V.B.


Appeal from the Order January 15, 2013 in the Court of Common Pleas of Berks County Civil Division at No.: 06-14183




D.M. and D.M.M. (Maternal Grandparents)[1], appeal pro se from the final custody order entered January 15, 2013, which awarded D.M. (Mother) sole legal and primary physical custody of C.H. (Child), who was born in October of 2004, and awarded Maternal Grandparents partial physical custody of Child one weekend per month, on a weekend of Mother's choosing. Mother has filed a motion to quash the appeal for Maternal Grandparents' failure to serve her with a copy of the reproduced record, and Maternal Grandparents have filed a motion to compel Mother to serve them with her objections to their praecipe to attach. We deny those motions, and we affirm the trial court's order.

The record supports the trial court's summary of the lengthy and protracted facts and procedure of this case in the Amended Findings of Fact and Discussion of March 28, 2013.[2] We quote that summary here at length because it aptly captures the posture and tenor of this case. In the first part of its summary, the trial court recounts the history that led to the current appeal:

This most recent custody trial is the latest chapter in the long saga of a very contentious child custody dispute between Maternal Grandparents and Mother. Father is deceased.
Paternal Grandmother and Mother long ago have amicably resolved Paternal Grandmother's partial custody rights and have demonstrated that they are more than capable of cooperation and communicating with each other in a reasonable manner. On the other hand, Mother and Maternal Grandparents have been locked in a contentious, [vitriolic] dispute for over six years. When the Child was approximately two-and-a-half years old, Maternal Grandparents were granted primary custody of the Child. At that time, Mother was permitted to be at Maternal Grandparents' residence at all times and Father was awarded periods of partial custody as agreed to between Father and Maternal Grandparents. In 2008 this order was modified, upon petition of Maternal Grandparents, to limit Mother's access to Maternal Grandparents' residence. Maternal Grandparents filed a Petition to Modify and eventually a custody order was entered in 2009 wherein Maternal Grandparents retained primary physical custody of the Child, but Mother was granted partial custody Monday, Wednesday and Friday evenings, as well as every weekend from Saturday to Sunday, and Thursday evenings if her work schedule changed to allow for that. Eventually, Mother married, moved into her marital home, and sought primary custody of the Child.
On March 14, 2011, Mother filed a Petition to Modify the current custody order, seeking primary custody of the Child. The Custody Master recommended that Mother have primary custody and that Maternal Grandparents should have regular periods of partial custody. Maternal Grandparents filed Exceptions to the Master's Recommendation, which brought the case to th[e c]ourt's docket for the first time. [The court] held a pretrial conference on August 5, 2011, at which time Maternal Grandparents and Mother were each represented by counsel. Paternal Grandmother was pro se. Following an off-the-record, in-chambers conference with counsel for the parties, (Paternal Grandmother did not participate as her rights of partial custody were not impacted), counsel consulted with their respective clients. After conferring with their clients, counsel informed the [c]ourt that all parties had reached an amicable agreement. Counsel for the parties, in open court and in the presence of their clients, stated the agreement on the record and all parties, under oath, stated on the record that they agreed to the terms outlined by counsel. The agreement provided that Mother would have primary custody and Maternal Grandparents would have partial custody on alternating weekends. Paternal Grandmother would have partial custody two weekends per year and two weeks in the summer. The [c]ourt adopted the parties' agreement as an order of [c]ourt (this is the August 5, 2011 Custody Order referred to above in the Findings of Fact).
Four days later, on August 9, 2011, Maternal Grandparents hired a new lawyer who filed a document entitled "Petition to Recant the Oral Agreement" essentially alleging that despite being competently represented in court and consenting to the agreement on the record, Maternal Grandparents were somehow forced into agreeing to the August 5, 2011 Custody Order. The [c]ourt denied the petition without a hearing and Maternal Grandparents filed a pro se appeal to the Superior Court. Several days later, while the appeal was still pending, Maternal Grandparents' new counsel filed a Petition to Modify the agreed-upon order, which th[e c]ourt held in abeyance pending the outcome of the appeal.[a]
[a] The filing of the Notice of Appeal divested [the trial court's] jurisdiction during the pendency of appeal.
On appeal, Maternal Grandparents alleged that th[e c]ourt improperly coerced them into agreeing to the terms placed on the record in open court. They alleged that th[e c]ourt "showed anger and resentment towards Maternal Grandparents". They alleged that the [c]ourt engaged in such scandalous behavior as "yelling and screaming" and stating "I don't care what the evidence will show . . .". Of course[, ] their allegations are not supported by the record and are refuted by Mother's counsel who was present during all the proceedings, on and off the record. [The trial court] likewise den[ies] these preposterous allegations.
Maternal Grandparents further alleged that they only agreed on the record to the terms outlined by counsel because they "panicked" when informed by their counsel of Mother's allegations of sexual abuse against Maternal Grandfather.
[The court notes] that throughout these proceedings, Maternal Grandparents have been consumed by how this litigation is affecting them, rather than demonstrating to the [c]ourt that they are concerned for the welfare of the Child. To wit, their Concise Statement of Matters Complained of on Appeal raises a myriad of issues, the overwhelming majority of which have nothing to do with the best interests of the Child, but rather concern the perceived harm caused to Maternal Grandparents' reputation by Mother's revelations about being abused as a child. [The court] further note[s] that because there was no hearing, there was no testimony regarding any such allegations. In fact, Maternal Grandparents' appeal and also their pending litigation in civil court against Mother for defamation have done far more to draw attention to the allegations against them than anything in our courtroom on the day the agreement was entered. In their 2011 Concise Statement of Matters Complained of on Appeal, Maternal Grandparents complain that th[e c]ourt abused its discretion by "not acknowledging the potential damage to the reputations and livelihoods of (Maternal Grandparents) if these allegations were left unaddressed;" in "not acknowledging that (Maternal Grandparents) are Licensed Therapeutic Foster Parents and these allegations, left unaddressed, could affect that position." They were also concerned with their "right to confront their accuser".
Ultimately the Superior Court affirmed th[e c]ourt's ruling wherein we denied Maternal Grandparents' "Petition to Recant Oral Agreement" and remanded the case. Following remand, Maternal Grandparents moved forward with their Petition to Modify, which had been theretofore held in abeyance. The matter proceeded in due course to a conciliation conference with the Custody Master. Following the conference, the Custody Master (again) recommended that Mother retain primary custody of the Child.[b]
[b] Following remand of record from Superior Court, Maternal Grandparents were represented by the same counsel who filed the "Petition to Recant Oral Agreement." This attorney also filed the Contempt Petition and represented them at the Contempt Petition hearing and at the "Sanctions" hearing.

(Amended Findings, 3/28/13, at 6-9).

When the appeal of the trial court's denial of Maternal Grandparents' petition to recant was resolved and the trial court resumed jurisdiction of the matter, the trial court again turned to the consideration of the subject of the current appeal, Maternal Grandparents' petition to modify. The trial court also had to rule on a petition for contempt that Maternal Grandparents had filed during the pendency of the prior appeal:

Maternal Grandparents again filed Exceptions to the Master's Recommendation. During the pendency of Maternal Grandparents' Petition to Modify, Maternal Grandparents filed a Petition for Contempt alleging that Mother and Paternal Grandmother conspired to deny them their regularly-scheduled, partial custody weekend because Paternal Grandmother chose to exercise one of her two weeks of partial custody over summer vacation on what would normally be Maternal Grandparents' regular weekend. Th[e c]ourt denied the Contempt Petition on the grounds that Paternal Grandmother followed the terms and provisions of the August 5, 2011, Custody Order, and in fact she went above and beyond the requirements by giving all parties advance notice of her choice of weeks and even deferred to all other parties' summer schedules before planning her vacation with the Child. It is important to note that Paternal Grandmother is entitled to only two weekends per year and two weeks per year of partial custody of the Child. Maternal Grandparents, on the other hand, enjoy partial custody two weekends per month, and also extended vacation. With respect to Maternal Grandparents' complaint that Paternal Grandmother usurped one of their weekends of custody, [the court] point[s] out that Paternal Grandmother is entitled to two consecutive or non-consecutive weeks, which by its terms clearly anticipates that she could have custody over a weekend that would otherwise be Maternal Grandparents' (or a weekend period would otherwise be Mother's). There is nothing in the order requiring Paternal Grandmother to defer to Maternal Grandparents' weekends. In fact, [the court] believe[s] Paternal Grandmother could have selected two, non-consecutive weeks of vacation, both of which could fall on weekends where the Child would otherwise be with Maternal Grandparents, and she would still not have run afoul of the Order by its terms. The Order does not require Paternal Grandmother to notify Maternal Grandparents of her selected weeks of custody. Mother has sole legal custody of the Child and there is no reason that Mother cannot consent to whatever two weeks she feels is appropriate for the Child to spend with Paternal Grandmother. To suggest that Paternal Grandmother was in contempt for exercising the meager custody time she enjoys, especially given her courteous and reasonable behavior in selecting her vacation time, is absurd.
Following a full hearing on Maternal Grandparents' Petition for Contempt, which required Paternal Grandmother to travel several hours in ill health to defend herself and Mother to employ counsel to respond and attend the hearing, [the court] found the petition to be baseless and frivolous and denied it accordingly.
Counsel for Mother filed a "Petition to Impose Sanctions" alleging that Maternal Grandparents' contempt petition was obdurate, vexatious and filed in bad faith entitling Mother and Paternal Grandmother to Attorney's fees and costs pursuant to 23 Pa.C.S.A. §5339.
On the 20th day of November, 2012, th[e c]ourt held a hearing to address the petition for sanctions. Following the hearing, [the court] found that Maternal Grandparents' contempt petition was indeed obdurate, vexatious and filed in bad faith and [it] awarded Mother $1, 300 in counsel fees incurred in defending the contempt petition and [it] awarded Paternal Grandmother $438 to compensate her for her travel expenses incurred as a result of the filing of the contempt petition.
In response, Maternal Grandparents filed a Petition for Reconsideration on November 26, 2012, based on the fact that the [c]ourt had not considered Maternal Grandparent's ability to pay the contempt sanction. [The court] held an evidentiary hearing on the 27th day of December, 2012[, ] to consider the merits of this petition. At this hearing, Maternal Grandparents presented little evidence to support their position, but rather attempted to re-litigate the underlying contempt issue by insisting that their reading of the August 5, 2011[, ] Custody Order was reasonable and that therefore their contempt petition was also reasonable. The only evidence presented at the hearing regarding the parties' finances indicated that they have spent tens of thousands of dollars on legal fees[c] and other services, such as ...

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