M.J. v. S.J.

J-A23031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.J., : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : S.J., : : Appellant : No. 117 WDA 2014

Appeal from the Order entered on December 19, 2013 in the Court of Common Pleas of Allegheny County, Family Court Division, No. FD 07-009307-004

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2014

pro se, from the Order denying his Petition for Contempt of Custody Order. We affirm and remand for the calculation and award of reasonable counsel fees.

The trial court set forth the relevant factual and procedural history as follows:

Father and M.J and had two children Sa.J. (DOB 8/11/94) and Su.J. (DOB 10/9/00). Mother filed for divorce in December 2007, with claims for custody, support, and equitable distribution. Since then, the docket in this matter has been extremely active [(this appeal is the fifteenth of its kind)]. In recent years, the litigation has centered most heavily around Su.J.; Sa.J. has been emancipated for some time. The primary issues in this latest appeal concern legal custody and contempt of custody orders.

An appropriate timeline begins on November 27, 2012[,] when Hearing Officer Laura Valles held a hearing on the issue of custody modification. The Hearing Officer ordered, among other things, that Su.J. see a therapist to address mental health

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Father must be required to give the requisite medical consent to the therapist so that Su.J. can begin treatment. But[,] before [the trial c]ourt could rule on that exception, Father gave his consent[,] and [] Mother withdrew her contention. Following the exceptions argument, however, Father revoked his consent and Su.J. was forced to cease her treatment. When Mother brought the issue before the [trial c]ourt, the [trial c]ourt sua sponte ordered a hearing on legal custody. Father appealed [the trial

See M.J. v. S.J., 93 A.3d 507 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 89 A.3d 1285 (Pa. 2014).]

In the interim, Father and Mother each appealed other unrelated matters. [See M.J. v. S.J., 747 & 925 WDA 2013 (Pa. Super. filed July 16, 2014).] In August 2013, Mother retained counsel, and soon thereafter asked the [trial c]ourt to cancel the legal custody hearing after coming to an apparent resolution with Father. The armistice was short-lived, however, and Mother petitioned the [trial c]ourt to schedule a hearing on legal custody after all. The legal custody hearing was scheduled for December 5, 2013. Meanwhile, Father also brought a contempt petition, which th[e trial c]ourt consolidated with the December legal custody trial. At the December 5 consolidated trial, [the trial c]ourt found that Mother was not in contempt. It also discontinued the legal custody portion of the trial [and

Trial Court Opinion, 2/19/14, at 1-2 (citations and footnote omitted).1

The trial court entered an Order on December 19, 2013, denying with a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement. The trial court issued an Opinion.

On appeal, Father raises the following questions for our review: 1 Opinion as February 19, 2013.

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1. Did the [trial c]ourt abuse its discretion by ignoring evidence

-service day with [Su.J.], knowing that [] Mother had previously violated [a] custody order resulting in make up time[,] per Order of June 12, 2013?

2. Did the [trial c]ourt abuse its discretion by ignoring evidence - stody time?

3. Did the [trial c]ourt abuse its discretion by not granting a hearing on contempt [of the] custody [O]rder with [Hearing Officer] Laura Valles so it could circumvent and avoid

impartial as reflected by [the] November 27, 2012 hearing with [Hearing Officer] Laura Valles that resulted in recommendations unfavorable to Mother, and [Hearing Officer] provided continuity to how the in-service days got included in her recommendations and by failing to delineate reasons for [the] decision on contempt of custody [O]rders on record or in the [O]rder per 23 Pa.C.S.[A. §] 5323(d)?

4. Did the [trial c]ourt abuse its discretion and err[] by issuing

petition for a hearing on legal custody when [the trial c]ourt did not have jurisdiction with appeal #723 WDA 2013 pending in the Superior Court? Court admitted to lack of jurisdiction, found [Mother] negligent in seeking hearing, asked [Father] for amount of damage[s] incurred with holding hearing, and yet failed to award damages to [Father].

5. Did the [trial c]ourt abuse its discretion [by releasing] a sealed Opinion for a related appeal[,] 747/925 WDA 2013[,] to Allegheny County Law Library?

Brief for Appellant at 3.

Our scope and standard of review are familiar: In

limited to determining whether the trial court committed a clear abuse of discretion. This Court must place great reliance on the sound discretion of the trial judge when reviewing an order of contempt.

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P.H.D. v. R.R.D., 56 A.3d 702, 706 (Pa. Super. 2012) (citation and quotation marks omitted).

In his first claim, Father contends that the trial court ignored evidence

-service day with Su.J., knowing that Mother had violated prior custody orders. Brief for Appellant at 5-6. Father also argues that Mother created conflicts in custody time by scheduling a vacation with Su.J. during a period when Su.J. was to spend time with Father for a religious holiday. Id. at 6. determined that it is without merit. See Trial Court Opinion, 2/19/14, at 6-10. We adopt the sound reasoning of the trial court for the purpose of this appeal and affirm on this basis. See id.

In his second claim, Father contends that the trial court abused its discretion in failing to find Mother in contempt for scheduling extra-curricular argues that the trial court acted with ill-will toward him in making its finding. Id.

s second claim and determined that it is without merit. See Trial Court Opinion, 2/19/14, at 10-12. Further, Father has not presented any evidence that the trial court acted with any ill-will toward him in it making its determination. Thus, we affirm as to this issue on the sound reasoning of the trial court. See id.

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In his third claim, Father contends that the trial court abused its discretion in not holding a hearing with Hearing Officer Laura Valles on the contempt Petition. Brief for Appellant at 6-7. Father argues that the trial court only schedules hearings with the Hearing Officer when it favors Mother, and ignores any recommendations made by the hearing officer that favor Father. Id. at 7.2

claim and determined that it is without merit. See Trial Court Opinion, 2/19/14, at 12-13. We adopt the sound reasoning of the trial court for the purpose of this appeal and affirm on this basis. See id.

In his fourth claim, Father contends that the trial court abused its an appeal regarding this issue was pending before this Court at 723 WDA 2013. Brief for Appellant at 7-9. Father argues that he was entitled to damages ba court did not have jurisdiction due to the pending appeal. Id. at 8. Father further argues that Mother admitted that she was in contempt of custody Orders and that the trial court ignored recommendations. Id. at 7-2 pertinent authority. See Pa.R.A.P. 2119(a) (stating that the argument shall

In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012).

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custody hearing on March 13, 2014, was in error as it did not have jurisdiction over the matter. Id. at 9.

d determined that it is without merit. See Trial Court Opinion, 2/19/14, at 2-6.3 We adopt the sound reasoning of the trial court for the purpose of this appeal and affirm on this basis. See id. With regard to any claims not addressed by the trial court, we conclude that the evidence does not support his claims and, therefore, Father is not entitled to relief.

In his fifth claim, Father contends that the trial court abused its discretion by releasing to the public its opinion for 747 & 925 WDA 2013 in violation of an Order to seal the record. Brief for Appellant at 9.4 without merit. See Trial Court Opinion, 2/19/14, at 13-14. We adopt the sound reasoning of the trial court for the purpose of this appeal and affirm on this basis. See id. in this matter. Indeed, Father has filed fifteen appeals, and has repeatedly litigated various orders for de minimis matters. See id. at 11-12; see also

3 We also note that t filed at 723 WDA 2013. See M.J., 93 A.3d 507 (unpublished memorandum at 10-12). 4 Father again failed to include a single citation to pertinent authority in his argument. See Pa.R.A.P. 2119(a). N argument.

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M.J. v. S.J., 40 A.3d 187 (Pa. Super. 2011) (unpublished memorandum at 2-his petitions for contempt and sanctions against Mother). Father has exhibited a sustained pattern of vexatious appellate litigation against Mother and we cannot ignore his continual abuse of the court system to harass her. See, e.g., M.J. v. S.J., 29 A.3d 832 (Pa. Super. 2011) (unpublished memorandum at 1-13) (wherein this appeal and imposed against Father the counsel fees incurred by Mother, finding that Father had engaged, throughout the litigation, in obdurate, dilatory, and vexatious conduct); M.J. v. S.J., 29 A.3d 824 (Pa. Super. 2011) (unpublished memorandum at 1-12) (wherein this Court disposed of conduct was obdurate, dilatory, and vexatious).

Pennsylvania Rule of Appellate Procedure 2744 allows this Court to sua sponte impose an award of reasonable counsel fees against a party if we

participant against whom costs are to be imposed is dilatory, obdurate or 5 see also Feingold v. Hendrzak, 15 A.3d

power under any statute or rule to award counsel fees for proceedings below and can only award fees for vexatious or obdurate conduct through a Twp. of South Strabane v. Piecknick, 686 A.2d 1297, 1300 n.4 (Pa. 1996).

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937, 943 (Pa. Super. 2011) (stating that this Court may sua sponte impose an award of counsel fees under Appellate Rule 2744). Upon awarding reasonable counsel fees, we may remand the case to the trial court so that it can calculate the precise amount. Pa.R.A.P. 2744.

Because Father has filed this frivolous Petition for Contempt and the

ate to award

Feingold for calculation of reasonable counsel fees for this appeal.

Order affirmed. Case remanded for calculation and imposition of reasonable counsel fees to be awarded to Mother consistent with this Memorandum. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/30/2014

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