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[U] T.L.P. v. R.F.P

Superior Court of Pennsylvania

March 7, 2014

T.L.P., Appellee
v.
R.F.P., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered May 17, 2013, in the Court of Common Pleas of Philadelphia County, Domestic Relations, at No: 0C1000744.

BEFORE: FORD ELLIOTT, P.J.E., WECHT and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

R.F.P. ("Father"), an attorney, filed the instant pro se appeal from the trial court's May 17, 2013 Custody Order ("the 2013 Custody Order), which modified a prior Custody Order. The prior Order implemented an agreement between Father and T.L.P. ("Mother), with regard to the shared custody of the parties' three children, R.P. (born in March 2005), S.P. (born in May 2006), and E.P. (born in June 2008) (collectively, "the Children"). The 2013 Custody Order granted Mother's Petition to Modify a prior Custody Order ("the 2011 Order"), but denied Mother's Petition to find Father in contempt of the prior order.[1] We affirm.

The trial court set forth the relevant history underlying the instant appeal as follows:

The present custody case was initiated on April 16, 2010, at which time Mother filed a [C]omplaint for primary physical and joint legal custody of [the Children] as part of her [D]ivorce [C]omplaint. On May 25, 2010, Mother withdrew her [D]ivorce [C]omplaint, which was resolved by a private agreement. Father then filed a [C]omplaint for primary physical and legal custody [of the Children] along with a [M]otion for [E]xpedited [R]elief on October 25, 2010. On October 29, 2010, the Honorable Nina Wright Padilla entered a temporary [O]rder by agreement awarding the parties shared physical and legal custody [of the Children].
On December 10, 2010, Mother again filed a [C]omplaint to [C]onfirm [C]ustody as part of her new [D]ivorce [C]omplaint…. A hearing was held[, ] on June 7, 2011[, ] on Father's [and Mother's respective custody complaints. On June 7, 2011, the trial court entered the 2011 Custody Order, as agreed to by the parties, ] granting the parties shared physical and legal custody [of the Children].
On October 22, 2012, Mother filed a [P]etition for [C]ontempt[, ] and[, ] on November 5, 2012, Mother filed a [M]otion for [E]xpedited [R]elief. The Honorable Holly Ford granted a Rule to Show Cause on Mother's [Motion] for [E]xpedited [R]elief on November 20, 2012. On December 4, 2012, Father filed his [A]nswer to Mother's contempt [P]etition. Mother then filed a [P]etition to [M]odify [the June 7, 2011 custody Order] on December 12, 2012. On December 27, 2012, Father filed an [A]swer to Mother's [P]etition for [E]xpedited [R]elief. After a hearing on January 30, 2013, Mother's [P]etition for [E]xpedited [R]elief was denied[, ] and this [c]ourt ruled that the [2011 Custody Order] was to remain in effect.

Trial Court Opinion, 6/28/13, at 1-2.

The trial court conducted a hearing on the parties' respective Custody Complaints on May 17, 2013. At the close of that hearing, the parties reached an agreed-upon resolution of the dispute. As a result, the trial court entered the 2013 Custody Order, which continued the parties' shared physical and legal custody of the Children. The 2013 Custody Order included a detailed holiday custody schedule, and addressed counseling matters, communication between the parties, and their attendance at extracurricular events. The 2013 Custody Order denied Mother's Petition for Contempt, but ordered Father to pay $500 in counsel fees to Mother's attorney.

Father timely filed a Notice of Appeal, along with a Concise Statement of Errors Complained of on Appeal. On appeal, Father raises the following issues for our review:

I. Whether the court below denied [F]ather due process by refusing to give him a full an[d] fair hearing?
[II.] Whether the court erred by granting relief on a claim [Mother] raised for the first time at the bar of the court[, which] was not raised in any of her three petitions, thus subjecting [F]ather to trial by ambush and denying him due process?
[III.] Whether the court erred by sua sponte modifying a term of the negotiated custody agreement where the record demonstrated that such modification would be antithetical to the best interest[s] of the [C]hildren?
[IV.] Whether the custody court erred by impermissibly relying on its own personal beliefs with respect to parental communication and ignored the law requiring only a "minimum of communication" between custodial parties by requiring excessive contact [between] the parties that inures to the detriment of the best interests of the [C]hildren?
[V.] Whether the court erred in awarding [Mother's] counsel $500.00 in fees where it failed to conduct any fact-specific analysis?
VI. Whether the court erred by permitting [Mother] to introduce inadmissible double hearsay?
VII. Whether the court erred by sua sponte requiring additional counseling for both parties where none was requested, and where [Mother's] own testimony demonstrated that both parties had already satisfactorily complied with the co-parenting requirement they had themselves negotiated?

Father's Brief at 3-4 (issues renumbered).

In custody modification cases, our standard of review is as follows:[2]

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., 45 A.3d at 443 (citation omitted). As this Court has explained, "[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." Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (citation omitted).

In contempt proceedings, this Court is "limited to determining whether the trial court committed a clear abuse of discretion." P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa.Super. 2012). "Each court is the exclusive judge of contempts against its process. The contempt power is essential to the preservation of the court's authority and prevents the administration of justice from failing into disrepute." Garr v. Peters, 773 A.2d 183, 189 (Pa.Super. 2001).

Father's first two claims assert violations of his constitutional right to due process. Father first claims that he was denied his constitutional right to due process at the May 17, 2013 hearing. Brief for Appellant at 20, 70. Father contends that the trial court precluded him, "an abused spouse, " from presenting any "case-in-chief in his own defense" of the contempt Petition. Id. at 20. On this basis, Father asserts, the Order modifying custody should be vacated, and the terms of the June 7, 2011 Order reinstated. Id.

In his second claim, Father asserts that the trial court conducted a hearing on Mother's Petition for Contempt on January 30, 2013, after which it denied Mother's Petition. Id. at 72. According to Father, at the May 17, 2013 hearing, the trial court entertained Mother's first allegation of contempt as to daughter E.P. and prevented Father from presenting his case-in-chief. Id. 73. Father contends that the trial court then granted Mother relief, based upon her new claim of contempt. Id.

Procedural due process requires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case. Garr, 773 A.2d at 191.

"Notice, in our adversarial process, ensures that each party is provided adequate opportunity to prepare and thereafter properly advocate its position, ultimately exposing all relevant factors from which the finder of fact may make an informed judgment."

P.H.D., 56 A.3d at 707 (quoting Choplosky v. Choplosky, 584 A.2d 340, 342 (1990)).

Our review of the record discloses that Mother filed her Petition for Contempt on October 19, 2012. Petition for Contempt, 10/19/12. Mother filed a Motion for Expedited Relief on her Contempt Petition on October 22, 2012. On December 4, 2012, Father filed a Response to Mother's Petition for Contempt. Response to Petition for Contempt, 12/4/12.

On December 12, 2012, Mother filed her Petition to Modify Custody. In her Petition to Modify Custody, Mother pointed out that the trial court had scheduled a hearing on her Contempt Petition for May 17, 2013. Petition to Modify Custody, 12/12/12, at ¶ 4. Father filed an Answer to Mother's Motion to Modify Custody. Answer to Motion in Custody, 12/27/12.

On January 30, 2013, the trial court conducted a hearing on Mother's Motion for Expedited Relief. After that hearing, the trial court denied Mother's Motion for Expedited Relief. Trial Court Order, 1/30/13. Contrary to Father's assertions, the trial court did not rule on Mother's Petition for Contempt at the close of the January 30, 2013 hearing. Further, the trial court did not rule on Mother's Petition to Modify Custody, or enter a final custody order.

At the May 17, 2013 hearing, Father had an opportunity to be heard on Mother's contempt Petition and the issue of modification of custody. N.T., 5/17/13, at 57-82. At the end of the hearing, the parties reached an agreement as to modification of the Custody Order, and the trial court denied Mother's Petition for Contempt. Id. at 87-94.

Thus, the record reflects that Father had notice that the May 17, 2013 hearing would address Mother's contempt Petition and Petition to Modify Custody. At that hearing, Father testified on his own behalf. Finally, the parties resolved their differences by agreement. On this basis, we conclude that Father's first and second claims, averring a violation of his right to due process, are without support in the record. Accordingly, Father is not entitled to relief on these claims.

In his third claim, Father argues that the trial court erred by sua sponte modifying the terms of the June 7, 2011 Custody Order, and limiting Father's presence at the Children's school. Brief for Appellant at 35. Once again, Father asserts that the trial court conducted a hearing on Mother's Petition to Modify Custody on January 30, 2013, and denied Mother's Petition. Id. at 40. According to Father, the trial court's subsequent modification of custody was "neither based on a full and fair hearing that permitted the presentation of evidence by both parties[, ] nor a fair and rational consideration of the evidence." Id. (emphasis in original). Upon review of the record, we disagree.

As set forth above, the trial court's January 30, 2013 Order denied Mother's Motion for Expedited Relief. Trial Court Order, 1/30/13. Contrary to Father's claim, the trial court did not enter a final custody order, or rule on Mother's Petition for Modification of Custody in its January 30, 2013 Order. Further, our review of the Notes of Testimony of the May 17, 2013 hearing reflect that both parties agreed to the modification, and raised no objections to the modification. N.T., 5/17/13, at 87-94; see also Trial Court Opinion, 6/28/13, at 2. Because there is no support for Father's claim of a sua sponte modification of the June 7, 2011 Custody Order, we cannot grant him relief on this claim.

In his fourth claim of error, Father argues that the trial court impermissibly relied on its personal beliefs with respect to parental communication, when it issued an order requiring excessive contact between Father and Mother. Brief for Appellant at 43. Father asserts that "[b]ecause the excessive contact ordered by the court imposes a higher standard than that required by law, " it is unduly burdensome and contrary to the best interests of the Children. Id.

As set forth above, Father did not object to the purported "excessive communication, " and the parties agreed to a modification of custody. N.T., 5/17/13, at 87-94. It is axiomatic that claims that were not raised in the trial court may not be raised for the first time on appeal. Pa.R.A.P. 302(a); Jahanshahi v. Centura Dev. Co., Inc., 816 A.2d 1179, 1189 (Pa.Super. 2003). Accordingly, Father's claim is not preserved for our review. See Pa.R.A.P. 302(a); Jahanshahi, 816 A.2d at 1189.

In his fifth claim of error, Father asserts that the trial court erred in awarding Mother's counsel $500 in fees. Brief for Appellant at 57. Father claims that, because the trial court failed to conduct a full and fair hearing, denied him an opportunity to present his case, and foreclosed any fact-specific analysis, it erred in awarding counsel fees to Mother. Id.

As discussed above, the trial court afforded Father a full and fair hearing at which Father testified on his own behalf. Mother's Petitions were resolved by the agreement of the parties, and Father raised no objection to the imposition of counsel fees. N.T., 5/17/13, at 85-86. Therefore, we could deem Father's claim waived. See Pa.R.A.P. 302(a); Jahanshahi, 816 A.2d at 1189. Regardless, our review of the record discloses that Father's claim lacks merit.

Our review of an award for counsel fees "is limited to solely determining whether the trial court palpably abused its discretion in making the fee award." Kulp v. Hrivnak, 765 A.2d 796, 799 (Pa.Super. 2000) (affirming a trial court's sua sponte award).

Contrary to Father's assertions, the trial court did not impose counsel fees sua sponte. In her Petition for Contempt, Mother requested that Father pay "reasonable attorney's fees to [] Mother's counsel." Petition for Contempt, 10/22/12, at 3 (unnumbered). In its Opinion, the trial court explained its imposition of counsel fees as follows:

Under the Pennsylvania custody statute, 23 Pa.C.S.[A.] § 5339, "a court may award reasonable interim or final counsel fees … to a party if the court finds that the conduct of another party was obdurate, vexatious, repetitive or in bad faith." See also 42 Pa.C.S.[A.] 2503(7).
In the present case, pursuant to the June 7, 2011 Order, the non-custodial party was to have two hours with the [C]hildren on each of their birthdays and on Halloween "by written agreement of the parties." Order dated 6/7/11. The parties were also ordered to set up separate email[] accounts to be used solely for custodial issues. At the hearing on May 17, 2013, it was clearly established that Father intentionally ignored Mother's continued attempts to arrange via email a birthday and Halloween visit. (See N.T.[, 5/17/13, at 8, 10, 15]). Father testified that he failed to respond to Mother's emails because he did not consider an agreement reached through email to be a "written agreement"[, id. at 58, 61], despite the [] 2011 Order's specific provision that email communication would be considered evidence at future custody proceedings and that "any change in custody must be confirmed through e[]mail." Order dated 6/7/11.
[The trial] court found that in ignoring Mother's emails regarding pertinent custody issues, Father acted in bad faith and demonstrated [a] total disregard for the custody [O]rder. Father's vexatious disobedience caused Mother to incur attorney's fees for the necessity of bringing the instant proceeding. According, Father was ordered to pay counsel fees in the amount of $500 to Mother's attorney.

Trial Court Opinion, 6/28/13, at 6-7 (citations to Notes of Testimony in original).

The record supports the trial court's determination, and we discern no error or abuse of discretion in this regard. Accordingly, we adopt the trial court's reasoning addressing Father's claim, as set forth above, and affirm on this basis. See id.

In his sixth claim, Father argues that the trial court erred by admitting email correspondence as evidence at the May 17, 2013 hearing. Brief for Appellant at 28. Father argues that the emails were inadmissible hearsay, and that the trial court improperly relied on these emails in granting relief against Father. Id.

The Notes of Testimony of the May 30, 2013 hearing disclose that the emails were offered as evidence of Mother's allegations of contempt against Father. See, e.g., N.T., 5/30/13, at 15 (wherein Mother identifies emails demonstrating her attempts to schedule co-parenting counseling), 18-28 (wherein Mother identifies emails following alleged disparaging comments made about her to the Children). However, we must conclude that any errors committed by the trial court in admitting the emails was harmless, and caused no prejudice to Father. Father was not found to be in contempt, and the parties agreed to the modification of custody. Accordingly, Father is not entitled to relief on this claim.

Finally, Father claims that the trial court improperly required both parties to attend additional counseling. Brief for Appellant at 88. Father asserts that neither party requested additional counseling, and that both parties already had complied with the counseling requirements set forth in the June 7, 2011 Order. Id.

As set forth above, the Notes of Testimony of the May 17, 2013 reflect that, at the close of the hearing, the parties had resolved Mother's Petitions by agreement. N.T., 5/17/13, at 84. Counsel for Father stated, on the record, the parties' stipulation that Father had completed "the other required courses[.]" Id. In reviewing the requirements agreed to by the parties, the trial court stated the following:

[The court is] going to indicate that [F]ather is to arrange co-parenting counseling with [M]other and [F]ather within 30 days of today's date, through counsel, through his insurance. The counselor is to-at their [sic] sole discretion, is to determine whether [M]other and [F]ather go together or separately, and I put that in an order already. Co-pays are going to be equally divided.

N.T., 5/17/13, at 88-89. Father at no time objected to the trial court's summary of the requirements agreed to by the parties. See id. Therefore, this claim is not preserved for our review. See Pa.R.A.P. 302(a); Jahanshahi, 816 A.2d at 1189. For all of the above-stated reasons, we affirm the Order of the trial court.[3]

Petition denied; Order affirmed.

Wecht, J., concurs in the result.

Judgment Entered.


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