K.M.G. v. H.M.W.

Decision Date29 September 2017
Docket NumberNo. 116 WDA 2017,116 WDA 2017
Citation171 A.3d 839
Parties K.M.G., Appellee v. H.M.W., Appellant
CourtPennsylvania Superior Court

Kerith S. Taylor, Brookville, for appellant.

BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER,* J.

OPINION BY STRASSBURGER, J.:

H.M.W. (Mother) appeals from the December 14, 2016 order finding her to be in contempt of court. We reverse.

Mother and K.M.G. (Father) are the parents of C.F.G. (Child), born in July 2010. Father initiated custody proceedings in 2011 and Mother filed a counterclaim for custody thereafter. In January 2013, the trial court entered an order granting Mother sole legal custody of Child and primary physical custody, subject to periods of supervised custody with Father every other weekend. As described by the trial court, over the next three years,

each party filed a litany of petitions for modification of custody as well as emergency petitions for modification of custody, which evidenced the ongoing turmoil between the parties. Thus, the [trial] court felt it necessary to appoint Courtney L. Kubista, Esq. as Guardian Ad Litem [GAL] on July 10, 2015. These various filings by the parties first culminated in the [trial court's order] [entered] January 2[5], 2016, wherein the [trial] court ordered that the parties utilize the Child Access Center in Bellefonte, Pennsylvania, to facilitate Father's periods of custody with Child. The January 2[5], 2016 order also stated that following one [ ] month of visits with Father through the Child Access Center, the Child Access Center was to facilitate the transition by Father to unsupervised periods of partial custody, including overnights, with the intent to afford Father periods of partial custody with Child on alternating weekends.
Unfortunately, the January 2[5], 2016 order did not prove effective in resolving the parties' issues regarding the custody arrangement of Child, and Father thereafter filed an additional petition to modify custody as well as an emergency petition to establish right of partial custody. After various proceedings, on April 29, 2016, [the trial] court ultimately ordered that its January 2[5], 2016 order was to be followed by the parties.
On July 12, 2016, Father filed a petition for contempt, wherein he alleged that Mother willfully failed to abide by the [trial] court's orders of January 2[5], 2016[,] and April 29, 2016[,] by failing to have Child meet with Father at the Child Access Center.

Trial Court Opinion, 2/15/2017, at 2–3 (unnecessary capitalization and articles omitted).

The trial court conducted a hearing regarding Father's contempt petition on December 14, 2016. Following the hearing, the trial court entered an order finding Mother to be in contempt for failing to comply with the trial court's January 25, 2016 and April 29, 2016 orders. After stating that "no sanctions shall be imposed at this time," the order continued, stating that

[i]t is the further order of [the trial] court that the parties shall immediately schedule an appointment for family counseling with a mutually agreed upon counselor and shall unconditionally follow the requests and recommendations of said counselor. Mother, Father and [Child] shall attend all sessions unless otherwise directed by the counselor.

Order, 12/14/2016, at 1 (unnecessary capitalization omitted).

Mother timely filed an appeal of this order. Both Mother and the trial court complied with Pa.R.A.P. 1925. On appeal, Mother raises two issues.

1. Did the trial court abuse its discretion by determining that sufficient evidence was presented to hold [Mother] in contempt of the trial court's orders of January 2[5], 2016[,] and April 29, 2016?
2. Did the trial court abuse its discretion by requesting and considering testimony from the [GAL] during the hearing on December 14, 2016, in violation of Pa.R.C.P. 1915.11–2 and 23 Pa.C.S. § 5334 ?

Mother's Brief at 9 (suggested answers and unnecessary capitalization omitted).1

Before we may address Mother's substantive claims, we must determine the appealability of the December 14, 2016 order. "This [C]ourt may examine appealability sua sponte because it affects our jurisdiction over the matter." In re K.K., 957 A.2d 298, 303 (Pa. Super. 2008) (quoting In re Estate of Fritts, 906 A.2d 601, 605 (Pa. Super. 2006) ).

To that end, this Court ordered Mother to show cause as to why her appeal should not be quashed, citing Genovese v. Genovese, 379 Pa.Super. 623, 550 A.2d 1021 (1988), for the proposition that contempt orders are appealable only after imposition of sanctions. Mother complied with the show-cause order, arguing that her appeal should not be quashed. Mother's argument had two components. First, Mother contended that although the trial court stated it was not imposing any sanctions, it did, in fact, impose a sanction when it ordered Mother to engage in family counseling with Father because family counseling was never previously ordered and could only be conducted at financial cost to Mother. Reply of Mother to Show–Cause Order, 2/10/2017, at 1–3. Second, Mother argued that even if ordering her to undergo family therapy did not constitute a sanction, because the contempt order disposed of all pending claims and parties in the custody action, the contempt order falls within the scope of a final order as defined by Pa.R.A.P. 341. Id. at 4. We agree with both of Mother's arguments.

Generally, "[a]n appeal may be taken only from a final order, unless otherwise permitted by rule or statute." Rhoades v. Pryce, 874 A.2d 148, 151–53 (Pa. Super. 2005) ; Pa.R.A.P. 341(a). "A final order is one that disposes of all the parties and all the claims, is expressly defined as a final order by statute, or is entered as a final order pursuant to the trial court's determination." Stahl v. Redcay, 897 A.2d 478, 485 (Pa. Super. 2006) (quoting In re N.B., 817 A.2d 530, 533 (Pa. Super. 2003) (citing Pa.R.A.P. 341(b)(1)(3) ).

Here, a review of the record reveals that the only matter pending on the docket prior to the entry of the trial court's December 14, 2016 order was Father's petition for contempt. The sole relief requested by Father's petition was for the trial court to enter an order directing Mother to appear for a hearing to show cause why she was not in contempt of court. Petition for Contempt, 10/23/2016, at 2 (pages unnumbered). The court entered such an order. Order, 10/27/2016, at 1. On December 14, 2016, Mother appeared before the trial court, and a hearing was conducted regarding Father's petition wherein the parties presented testimony and exhibits. Subsequent to the hearing, the trial court entered an order with a direct finding that Mother was in contempt of the court's prior orders. It is clear from the text of the order that no further proceedings or orders regarding the matter were contemplated. Thus, because the trial court's December 14, 2016 order "disposes of all claims and of all parties," it is a final order. Pa.R.A.P. 301(a).

We recognize that the order stated that sanctions were not imposed on Mother, a contention the trial court echoes in its Pa.R.A.P. 1925(b) opinion. Order, 12/14/2016, at 1; Trial Court Opinion, 2/15/2017, at 4. This Court has often stated that "an order of contempt is not appealable if sanctions were not imposed." See, e.g., N.A.M. v. M.P.W., 168 A.3d 256, 260, 2017 WL 3378878, at *3 (Pa. Super. 2017) (citing Takosky v. Henning, 906 A.2d 1255, 1258 (Pa. Super. 2006) and Genovese v. Genovese, 379 Pa.Super. 623, 550 A.2d 1021, 1022–23 (1988) ). However, we find this line of cases to be distinguishable.

First, assuming arguendo that the order in the instant case did not impose sanctions, the lack of sanctions does not change the fact that the contempt order at issue plainly disposed of all claims and all parties. Although this Court has often repeated the refrain that sanctions must be imposed before an order is final and appealable, an examination of the cases reveals that there is often more nuance to the cases beyond a mere lack of sanctions.

In most of the cases, it is clear that either the order did not make a present finding of contempt, or revealed that the trial court contemplated further proceedings, thereby failing to meet the finality requirement of disposing of all claims and all parties. See Takosky, 906 A.2d at 1255 (holding indirect criminal contempt order was not final because order indicated that sentencing would be held at a future time, and, therefore, punishment phase of matter had not yet been determined); Sargent v. Sargent, 733 A.2d 640, 641 (Pa. Super. 1999) (holding order was not final because "threatened sanction of imprisonment may or may not be imposed in the future depending on whether [a]ppellant pays the past due support"); Kenis v. Perini Corp., 452 Pa.Super. 634, 682 A.2d 845, 848 (1996) (holding order was not final because order merely stated that court may hold appellant in contempt and impose daily fine in the future if appellant did not hand over file as ordered); Genovese, 550 A.2d at 1022–23 (holding order requiring appellant to pay child support "or be held in contempt" was not final because it did not impose present finding of contempt or order a sanction); Rulli v. Dunn, 337 Pa.Super. 613, 487 A.2d 430, 431 (1985) (holding order was not final because it ordered appellant to comply with order within ten days or face sanctions in the future); McManus v. Chubb Grp. of Ins. Companies, 342 Pa.Super. 405, 493 A.2d 84, 86 (1985) (holding that appellant was "not out of court" until "threatened sanction" in the form of dismissal of action actually was imposed); Guisler v. Alexander, 307 Pa.Super. 219, 453 A.2d 4, 4–5 (1982) (holding show-cause order was not final because it simply ordered a hearing to determine whether a party should be held in contempt); Brodsky v. Philadelphia Athletic Club, Inc., 277 Pa.Super. 549, 419 A.2d 1285, 1286–88 (1980) (holding order was not final because chancellor merely threatened to hold party in contempt and issue...

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