O.B. v. C.W.B.

245 A.3d 1049 (Table)

O.B. v. C.W.B., Appellant

No. 1677 WDA 2019

Superior Court of Pennsylvania.

Filed December 8, 2020

Reargument Denied February 16, 2021

MEMORANDUM BY BOWES, J.:

C.W.B. ("Father") appeals pro se from the October 11, 2019 ¹ order that, inter alia , found him in contempt of the 2017 order establishing the custody arrangement between Father and O.B. ("Mother") for their child J.B. (born in 2008). We vacate the order holding Father in contempt and imposing sanctions, and remand for a new contempt hearing.

Father is a U.S. citizen who resides in Germany. Mother, a citizen of Ukraine, resides in Pittsburgh, Pennsylvania, as a lawful permanent resident. The parties married in Ukraine in 2008. The family resided in Ukraine and Ireland during the first three years of J.B.’s life. In 2011, Mother and J.B. moved to Pittsburgh after Mother was accepted into a Ph.D. program there, while Father took a position in Germany. Father joined Mother and J.B. in Pittsburgh in 2013, then the family relocated to Germany. In 2015, Mother and J.B. returned to Pittsburgh. Father has maintained that the parties had agreed to alternate custody, with J.B. attending school one year in Pittsburgh, then the next in Germany, and so on. Mother disclaims reaching any such agreement.

In 2016, Mother filed a complaint for divorce and a complaint for custody. ² The court entered an interim order granting primary custody to Mother during the school year and to Father during summer break. The orderly progression of the custody proceedings, in which Father was permitted to participate via telephone, was interrupted by Father's unsuccessful litigation in federal court of a claim for the return of J.B. to Germany pursuant to the Hague Convention. Ultimately, a trial was conducted, and a final custody order entered on August 2, 2017. Therein, the court awarded primary physical custody to Mother in Pittsburgh, with Father enjoying physical custody in Germany during the summer and holidays and the right to additional time in Pittsburgh if he chose to avail himself of it. The parties shared legal custody but for regarding educational matters, for which Mother was awarded decision-making authority. Father's appeal from the 2017 custody order resulted in no relief. ³ See O.B. v. C.W.B. , 190 A.3d 731 (Pa.Super. 2018) (unpublished memorandum).

In 2018, Father moved to modify custody, and a trial was scheduled, however, it was superseded by a hearing on allegations of contempt against Father. ⁴ Father also moved for the trial court to recuse itself in December 2018 and January 2019, but the trial court declined. Father filed another motion to modify custody in January 2019, and a judicial custody conciliation was scheduled for September 26, 2019. See Order, 6/27/19. In the meantime, J.B. spent the summer of 2019 with Father in Germany pursuant to the terms of the 2017 custody order.

J.B. was to return to Pittsburgh on August 19, 2019, one week before school began. Instead, Father enrolled J.B. in school in Germany and refused to allow him to go back to Pittsburgh. On August 22, 2019, Mother presented a motion for contempt and for immediate return of J.B. Father participated in the motion hearing via telephone and indicated that J.B. refused to go back to Pittsburgh. See N.T., 8/22/19, at 3. The trial court advised Father that it was his legal responsibility to comply with the controlling custody order, and that it would schedule a hearing on the contempt petition. Id . at 3-4.

In accordance with its intentions stated at the hearing, the trial court entered orders on August 29, 2019, (1) requiring Father to immediately send J.B. back to Pittsburgh via airplane as he had in the past, and (2) scheduling a hearing on the contempt allegations for October 20, 2019. "The scheduling order [wa]s docketed at Document 170 on the trial court docket and was emailed to Father, the notification method he requested be implemented and which has been used throughout the pendency of this case." Trial Court Opinion, 2/24/20, at 2. See also Order, 8/29/19. The order further specified that "Father may arrange to testify by telephone as he has before." Id . The custody conciliation scheduled for September 26, 2019, in connection with Father's 2019 modification motion did not take place while J.B. remained in Germany.

Father did not appear at the October 10, 2019 contempt hearing by telephone or in person. The trial court proceeded without him. The following day, the order at issue was entered, indicating that Father was in contempt of the 2017 custody order by failing to return J.B. on August 19, 2019, and also for unilaterally enrolling J.B. in school in Germany when Mother has full legal authority on educational matters, and awarding Mother counsel fees. See Order, 10/11/19, at ¶¶ 2-5. The order further provided that the court would schedule a hearing on custody modification "upon praecipe of either party when the child is returned to Pittsburgh." Id . at ¶ 7.

Father filed a timely notice of appeal from the October 11, 2019 contempt order, along with a statement of errors complained of on appeal. Father filed a motion in the trial court nearly two weeks later, ⁵ asking the trial court to vacate its October 11, 2019 order because he did not receive notice of the contempt hearing, and seeking the trial court's recusal. See Motion to Vacate, 11/20/19, at 3-4. The trial court denied the motion by order indicating that Father in fact received email notice and nonetheless failed to appear for the contempt hearing. See Order, 11/20/19.

Father states the following questions for our review, which we have re-ordered for ease of disposition:

A. Did the family court abuse its discretion, make an error of law, and/or breach due process rights and/or equal protection rights in refusing to timely calendar a custody modification trial?

B. Did the family court abuse its discretion, make an error of law, and/or breach due process and/or equal protection rights in refusing to appoint a guardian ad litem ?

C. Did the family court abuse its discretion, make an error of law, and/or breach due process rights and/or equal protection rights in determining me to be in contempt?

D. Did the family court abuse its discretion and/or make an error of law in determining that [Father] willfully breached the custody order?

E. Did the family court abuse its discretion, err as a matter of law, and/or breach due process and/or equal protection rights ... by failing to recuse itself?

F. Did the family court abuse its discretion, err as a matter of law, and/or breach due process rights and/or equal protection rights by failing to have a record hearing on recusal?

G. Would a common law reasonable person be satisfied that the judicial authorities, provided by Commonwealth for determining a custody dispute involving a non-locally resident party, lack an appearance of bias?

Father's brief at 10-11 (references to Pa.R.A.P. 1925(b) statement omitted).

Father's first two issues implicate the underlying custody litigation rather than the contempt order. Specifically, Father claims that the trial court erred in failing to schedule a timely custody modification trial. Father contends that he had "repeatedly asked for a trial calendared that would give a decision in good time for the upcoming academic year and these requests have been repeatedly denied." Father's brief at 35 (footnote omitted). Father also questions whether the trial court "abuse[d] its discretion, ma[d]e an error of law, and/or breach[ed] due process and/or equal protection rights in refusing to appoint a guardian ad litem ." Id . Father's argument speaks of J.B.’s custody preference and the trial court's indication at a 2018 hearing that Father had been engaging in parental alienation. Id . at 40-45.

We fail to see how these contentions relate to Father's failure to abide by the terms of the existing custody order and the trial court's decision to hold him in contempt as a result of that failure. A contempt proceeding is collateral to the underlying custody dispute, and an appeal from an order finding contempt and imposing sanctions does not give this Court jurisdiction over other issues unrelated to the contempt. See , e.g. , V.C. v. L.P. , 179 A.3d 95, 97 (Pa.Super. 2018) (exercising jurisdiction to review challenge to contempt order but quashing all other portions of the appeal). Consequently, Father's claims regarding the scheduling of a hearing on custody modification and the denial of his requests for the appointment of a guardian ad litem for J.B. are not properly before us. ⁶

Father's next two questions do concern the trial court's October 11, 2019 order finding him in contempt. Our standard of review pertinent to these questions is as follows:

On appeal from an order holding a party in contempt of court, our scope of review is very narrow, and we place great reliance on the court's discretion. The court abuses its discretion if it misapplies the law or exercises its discretion in a manner lacking reason. 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 falling into disrepute. Absent an error of law or an abuse of discretion, we will not disrupt a finding of civil contempt if the record supports the court's findings.

Thomas v. Thomas , 194 A.3d 220, 225 (Pa.Super. 2018) (cleaned up).

Our Legislature has enacted the following provisions concerning the refusal of a party to comply with a custody order:

(g) Contempt for noncompliance with any custody order .—

(1) A party who willfully fails to comply with any custody order may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punishable by any 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

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