Batterman, C v. Santo, S.

J-A26021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHAD BATTERMAN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : SILVIA SANTO : : Appellee : No. 739 EDA 2022

Appeal from the Order Entered March 9, 2022 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2019-06877

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.* MEMORANDUM PER CURIAM: FILED DECEMBER 28, 2022

Appellant, Chad Batterman (“Father”), appeals from the order entered in the Montgomery County Court of Common Pleas on March 9, 2022, which granted in part Father’s petition to modify custody in part and denied all other relief, and which found Father in contempt of the court’s prior custody orders. We affirm.

The trial court set forth the factual and procedural history of this case as follows:

The instant appeal marks the continuation of a highly litigated custody case. The majority of the litigation has resulted from “emergency” and contempt petitions filed by Father (who has filed over 85 petitions since the case was transferred from Philadelphia in April, 2019).

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• • Retired Senior Judge assigned to the Superior Court.

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On July 16, 2021, after a five-day custody trial spanning several months, the [trial court] issued a detailed and expansive custody order (the “July 16, 2021 Order”) granting Mother sole legal custody and primary physical custody of the minor children C.B.[, born October 2015,] and D.B.[, born October 2017,] (hereinafter the “Children”) subject to Father’s periods of partial custody.

On October 27, 2021, after another protracted hearing, the [trial court] granted Mother seven make-up days (chosen pursuant to a set regimen) (the “October 27, 2021 Order”) because of Father’s withholding of the Children contrary to the July 16, 2021 Order and without Mother’s consent.

Over the next five months, Father filed the following petitions requesting various relief, some of which “amended” previously filed petitions:

• • 11/04/21 Emergency Petition to Revise the Holiday Schedule in the July 16, 2021 Order (Seq. #336);
• • 12/21/21 Amended Emergency Petition for Civil Contempt for Disobedience of the July 16, 2021 and October 27, 2021 Orders (Seq. #365);
• • 12/28/21 Emergency Motion Requesting Full Time Enrollment of Parties’ Son in Pre-School (Seq. #376);
• • 01/10/22 Emergency Motion Requesting Mother Be Ordered to Allow Access to the Parties’ Children During Her Custodial Time for the Children to Attend Their Scheduled Extra Curricular Activities (Seq. #381);
• • 02/22/22 Emergency Motion Requesting Mother Be Ordered to Have the Parties’ Children Wear Face Masks in Compliance with the July 16, 2021 Order and Enforcement of the Order Mother is Willfully Disobeying (Seq. #397);
• • 02/25/22 Amended Motion Requesting Full Time Enrollment of Parties’ Son in Pre-School (Seq. #402);

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• • 02/25/22 Amended Motion to Revise the Holiday Schedule in the July 16, 2021 Order (Seq. #403);
• • 02/25/22 Amended Motion Requesting Mother Be Ordered to Allow Access to the Parties’ Children During Her Custodial Time for the Children to Attend Their Scheduled Extra Curricular Activities (Seq. #404); and
• • 03/01/22 Second Amended Petition for Civil Contempt for Disobedience of the July 16, 2021 and October 27, 2021 Orders (Seq. #405).

Each of Father’s petitions filed as “Emergency Petitions” were deemed not to be emergencies and were consolidated with previously scheduled petitions.

On January 28, 2022, Mother filed an Emergency Petition for Special Relief, alleging that Father, without Mother’s consent or a court order, took the parties’ minor daughter to receive her first COVID vaccine and seeking an order stopping Father from taking their daughter to receive her second COVID vaccine. That same day, th[e trial c]ourt deemed that petition to not be an emergency but ordered that both parties “strictly comply with the July 16, 2021 Custody Order” and reminding that “Mother has sole legal custody” and “makes final medical decisions regarding the children except in the case of an emergency—which this is not” (the “January 28, 2022 Order”).

Notwithstanding the January 28, 2022 Order, on or about February 1, 2022, Father took his daughter to receive a second COVID vaccine shot without Mother’s consent. On February 22, 2022, Mother filed a Petition for Contempt, requesting th[e trial c]ourt find Father in contempt of the July 16, 202[1] Order and the January 28, 2022 Order for the vaccine issue as well as for filing additional frivolous petitions in contravention of several court orders.

On March 2, 2022, the parties appeared for a hearing before th[e trial c]ourt to address all then-outstanding matters. On March 9, 2022, th[e trial c]ourt issued an order: (1) granting Father’s request for additional holiday time by extending his Hanukkah custodial period by one day, (2) finding Father in

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contempt of the July 16, 2021 and January 28, 2022 Orders, (3) sanctioning Father with a purge-condition fine of $500 payable to Montgomery County Child Advocacy Project (“MCAP”) or, if Father failed to pay the fine, 72 hours of incarceration, and (4) denying all other relief (“the March 9, 2022 Order”).

Father filed an Emergency Request for Stay of March 9, 2022 Order, requesting, inter alia, that if the petition for stay was denied, he be assigned a payment plan for the $500 sanction. On March 21, 2022, th[e trial c]ourt deemed the petition to not be an emergency, but did permit Father to pay his sanction over the course of four months in monthly installments of $125.00 (the “March 21, 2022 Order”).

(Trial Court Opinion, 5/24/22, at 1-4).

Father filed a notice of appeal and concise statement of errors complained of on appeal on March 22, 2022.1

Father now raises the following issues for this Court’s review:

Did the Trial Court error as a matter of law as outlined below ____________________________________________

1 On March 23, 2022, while Father’s appeal was pending before this Court, he filed an application for supersedeas, which sought a stay of the trial court’s orders, and he filed an application to proceed in forma pauperis. This Court denied the application for supersedeas per curiam on March 23, 2022, and we denied the application to proceed in forma pauperis on March 25, 2022.

On April 4, 2022, Father filed an application for reconsideration of the in forma pauperis determination and for reconsideration of the denial of his application for supersedeas. On April 28, 2022, this Court denied his applications for reconsideration as they were not filed within the seven-day period during which an appellant may seek reconsideration.

After that date, Father presented multiple applications for emergency relief related to production of transcripts and other exhibits. Following this Court’s denial of those motions, Father filed applications for reconsideration, which were also denied.

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in the arguments section. (Father’s Brief at 1).

For the ease of the reader, we reproduce those headings from the argument section in which Father sets forth his questions presented.2

1. The [trial court] erred as a matter of law by denying all but one request of [Father’s] Emergency Petition to Revise the Holiday Schedule (Seq. #336).

2. The [trial court] erred as a matter of law by failing to find [Mother] in Contempt of the July 16, 2021 and October 27, 2021 Orders (Seq. #365).

3. The [trial court] erred as a matter of law by failing to find [Mother] in Contempt of the July 16, 2021 and October 27, 2021 Orders (Seq. #405).

4. The [trial court] erred as a matter of law by denying [Father’s] Emergency Petition Requesting Full Time Enrollment of Parties’ Son in Pre-School (Seq. #376).

5. The [trial court] erred as a matter of law by denying [Father’s] Emergency Petition Requesting Mother Be Ordered to Allow Access to the Parties’ Children During Her Custodial Time for the Children to Attend Their Scheduled Extra Curricular Activities (Seq. #381).

6. The [trial court] erred as a matter of law by denying [Father’s] Emergency Petition Requesting Mother Be Ordered to Have the Parties’ Children Wear Face Masks in Compliance with the July 16, 2021 Order and Enforcement of the Order Mother is Willfully Disobeying (Seq. #397). ____________________________________________

2 Father’s failure to list all issues in his statement of questions presented does not comply with our Rules of Appellate Procedure, which require that “[t]he statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. … No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a).

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7. The [trial court] erred as a matter of law by modifying/amending/altering and/or clarifying the July 16, 2021 Custody Order without prior notice.

8. The [trial court] erred as a matter of law by modifying/amending/altering and/or clarifying the July 16, 2021 Custody Order at a Contempt hearing when there was no pending Petition to Modify Custody heard at the hearing.

9. The [trial court] erred as a matter of law by hearing Mother’s Contempt Petition (seq. #401) at the March 2, 2022 [hearing] without proper notice to Father.

10. The [trial court] erred as a matter of law by hearing Mother’s Contempt Petition (seq. #401) at the March 2, 2022 hearing without following protocols per Montgomery County Court of Common Pleas.

11. The [trial court] erred as a matter of law by finding [Father] in contempt.

12. The [trial court] erred as a matter of law by imposing monetary sanctions on Father.

13. The [trial court] erred as a matter of law by imposing mandatory jail time if monetary sanctions were not paid.

14. The [trial court] erred as a matter of law by not holding a hearing to review the reasonableness of the sanctions and Father’s ability to pay fine.

15. The [trial court] erred as a matter of law by Ordering instant incarceration to follow of an individual with an inability to pay monetary sanctions.

(Father’s Brief at 2, 6, 14, 25, 29, 34, 45, 50, 55, 56, 57).

Our well-settled scope and standard of review are as follows:

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

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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.

With any child custody case, the paramount concern is the best interests of the child. This standard requires a case- by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well- being of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)).

In addition, “[w]hen considering an appeal from an [o]rder holding a party in contempt for failure to comply with a court [o]rder, our scope of review is narrow: we will reverse only upon a showing the court abused its discretion.” Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009) (quoting Hopkins v. Byes, 954 A.2d 654, 655-56 (Pa.Super. 2008)). Additionally, we must consider that:

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. When reviewing an appeal from a contempt order, the appellate court must place great reliance upon the discretion of the trial judge.

Habjan v. Habjan, 73 A.3d 630, 637 (Pa.Super. 2013) (quoting

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Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa.Super. 2002)).

The general rule in proceedings for civil contempt is that “the burden of proof rests with the complaining party to demonstrate, by a preponderance of the evidence, that the defendant is in noncompliance with a court order.” Id. (quoting Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa.Super. 2001)).

To sustain a finding of civil contempt, the complainant must prove certain distinct elements: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was volitional; and (3) that the contemnor acted with wrongful intent.

Id. (quoting Stahl v. Redcay, 897 A.2d 478, 486 (Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d 747 (2007)).

After finding a party in contempt for failure to comply with a custody order, the party may be punished by one or more of the following:

(i) Imprisonment for a period of not more than six months.

(ii) A fine of not more than $500.

(iii) Probation for a period of not more than six months.

(iv) An order for nonrenewal, suspension or denial of operating privilege under section 4355 (relating to denial or suspension of licenses).

(v) Counsel fees and costs. 23 Pa.C.S.A. § 5323(g)(1)(i)-(v). “The purpose of civil contempt is to compel performance of lawful orders, and in some instances, to compensate the complainant for the loss sustained. When contempt is civil, a court must impose conditions on the sentence so as to permit the contemnor to purge

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himself.” Gunther v. Bolus, 853 A.2d 1014, 1018 (Pa.Super. 2004), appeal denied, 578 Pa. 709, 853 A.2d 362 (2004) (citations and internal quotation marks omitted).

After a thorough review of the certified record, the parties’ briefs, and the relevant law, we conclude that the record supports the trial court’s determination. See M.J.M., supra; Harcar, supra. Consequently, we affirm the order denying Father’s petitions and finding Father in contempt for the reasons stated in the opinion that the Honorable Henry S. Hilles, III, entered on May 24, 2022.

Specifically, Judge Hilles noted that he did not err in amending the holiday schedule to balance holiday time between the parties. The court explained that its order granted Father an additional night during Hanukkah but denied his other requests as they were made in bad faith. (See Trial Court Opinion at 7). Further, Judge Hilles observed that the court did not err in finding that Mother was not in contempt of the custody orders based on her suggestion that she receive make-up custodial time during the Hanukkah holiday because Mother had also suggested other make-up dates that did not infringe on either party’s holiday custodial periods. (Id. at 9-10).

Concerning Father’s claims that Mother was not enrolling the parties’ son in pre-school, Judge Hilles emphasized that Mother has sole legal custody and her choice of pre-school was appropriate. Further, Father did not introduce any credible evidence that Mother was excluding him from extra-

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curricular activities, or that she failed to have Children masked in contradiction of a court order. (Id. at 11).

Judge Hilles noted that the July 16, 2021 custody order provides that “Mother shall have sole legal custody of the Children,” and “[t]he ultimate decision-making shall be up to Mother.” (Order, 7/16/21). Hence, the trial court was not modifying the custody order when it reiterated in its March 9, 2022 order that Mother was sole legal custodian and had the “exclusive authority to make all final decisions relating to medical, psychological, therapeutic, dental and educational issues involving the children.” (Order, 3/9/22). (See also Trial Court Opinion at 12-14).

Judge Hilles explained that the court did not err when it heard all of Father’s outstanding petitions at the scheduled proceeding. The court advised the parties in advance that it intended to handle all then-pending petitions during the March 2, 2022 hearing, and it gave the parties ample opportunity to address each outstanding petition and admit exhibits into the record. (Id. at 15-16).

With respect to finding Father in contempt and issuing sanctions, Judge Hilles explained that the trial court did not err in finding that Father was in civil contempt of the court’s order when Father took his daughter for a second COVID shot in direct contravention of the court’s July 16, 2021 and January 28, 2022 orders. Given Father’s pattern of disobeying court orders and ignoring warnings of possible contempt, the court did not err in imposing a

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sanction of 72 hours of incarceration with a purge condition of a $500 fine. (Id. at 17-18). As to the foregoing points, we adopt Judge Hilles’ reasoning as our own.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/28/2022

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