E.K. v. J.R.A.

237 A.3d 509

E.K., Appellee

v.J.R.A., Appellant

E.K., Appellee

v.J.R.A., Appellant

No. 3233 EDA 2019

No. 3445 EDA 2019

Superior Court of Pennsylvania.

Submitted May 20, 2020

Filed August 07, 2020

Stanislav Shnayder, Feasterville, for appellant.

Jan C. Grossman, Newportville, for appellee.

BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

Appellant, J.R.A. (Father), appeals from two interrelated orders. The first is an order entered pursuant to the Protection from Abuse (PFA) Act, 23 Pa.C.S. §§ 6101 - 6122, granting the petition filed by E.K. (Mother) (PFA Final Order). The second is an order entered pursuant to the Child Custody Act, 23 Pa.C.S. §§ 5321 - 5340, which found Father to be in contempt of a prior custody order (Custody Contempt Order). We affirm the PFA Final Order, but vacate the Custody Contempt Order.¹

Mother and Father are parents to J.A., born in 2003 (Daughter), and E.A., born in 2006 (Son) (collectively, Children). Mother and Father never married, but lived together for over 17 years. They separated in 2017. Mother now resides with J.G. (Boyfriend) and Father resides with D.M. (Girlfriend).

The parties have a history of custody and PFA litigation. By way of background, the first filings occurred in June 2018, when Mother filed an emergency complaint for custody and a PFA petition. In the PFA petition, she averred that Father had recently inundated her with over 560 text messages in one week, including links to songs with violent lyrics. She described an alleged history of past abuse, including violence during her pregnancies, an incident in 2011 where Father placed his hands on her throat and slammed her head to the ground, an incident in 2014 where Father injured Mother's wrist by backing up a truck while her hand was stuck in the steering wheel and she was standing on the sideboard during an argument, and an incident in 2017 where Father shoved her head against the wall. In the custody petition, she sought primary physical and legal custody, and made similar averments to those she made in the PFA petition. Following the grant of a temporary PFA order, Mother and Father resolved the pending PFA petition by agreement and negotiated a final PFA order that expired in January 2019. See PFA Order, 6/27/2018. In the negotiated order, the parties agreed to share custody of Children on a 50/50 basis. The parties also resolved the pending custody petition by agreement in August 2018, wherein the parties agreed to continue sharing physical custody on a 50/50 basis. See Custody Order, 8/9/2018.

In September 2018, Mother filed an emergency petition to modify the custody arrangement, followed by a motion for contempt of the PFA order. Both involved allegations that Father had posted lyrics to a song on his Facebook page that Mother viewed as a threat due to the violent nature of the lyrics and Father's substitution of the names of Mother and Boyfriend in the lyrics. The motion for contempt in the PFA matter was dismissed in October 2018, but the June 27, 2018 PFA order remained in effect.

In the meantime, while Mother's emergency petition for custody modification was still pending, Mother filed a second emergency petition for custody modification in January 2019. She also filed a PFA petition on behalf of Children. Inter alia , both January 2019 filings contained averments of an incident, while Children were in Father's care, during which Father was violent with Girlfriend, injuring Girlfriend. Specifically, Mother averred that Daughter contacted Mother while Daughter was in Father's custody, and told Mother that Father was hurting Girlfriend. Shortly thereafter, Girlfriend showed up at Mother's house, acting hysterical and fearful, and Mother averred that she observed scratches, red marks, and bruises on Girlfriend's neck, wrists, and back.² Father was arrested and charged with strangulation, assault, and harassment.

While the custody matter remained pending, the PFA matter was heard in a series of hearings over several months presided over by the Honorable Leslie Gorbey. After multiple hearings, the trial court dismissed the PFA petition on August 23, 2019, and issued findings to accompany its dismissal. The trial court noted that Father's criminal charges had been reduced to a single summary charge, to which Father pleaded guilty after Girlfriend recanted her allegations against Father. Nevertheless, after hearing the testimony of a police officer involved in the investigation, Mother, Father, Girlfriend, and Daughter, the trial court credited Daughter's testimony about the incident over Father's and Girlfriend's, and determined that Father physically abused Girlfriend in his bedroom while Children were in another room on the same floor in Father's house. See PFA Order, 8/23/2019, at ¶¶ 2-16. Both Mother and Daughter testified that Father physically abused Mother in the past, but acknowledged that Father had not abused Daughter or Son. Id. at ¶ 15. During the January 2019 incident with Girlfriend, Father did not hit, physically assault, or touch Daughter in an abusive manner. Id. at ¶ 14. Although the trial court assessed "Father's violent behavior" as "[in]appropriate," "[un]acceptable," "concerning," and "alarming," and credited Daughter's fear and discomfort around Father, the trial court concluded that Daughter's feelings did not meet the definition of abuse set forth in the PFA Act.³ Id. at ¶ 17. The trial court opined that "[t]his problem is one that should be addressed in a [c]ustody action and not under the [PFA Act]." Id.

Subsequently, Mother's two petitions to modify custody were heard on October 22, 2019, by the Honorable Alan Rubenstein. During that hearing, Daughter was the sole witness and testified about her fear of Father and concerns about his care. At the conclusion of the hearing, the custody court entered a "Domestic Court Sheet" on the docket, with a section labeled "Order" stating the following.

Either party may petition for a further hearing.

Temporary order subject to modification: Mother to have primary physical and sole legal custody of [Children].

Father shall have no right to custody with [Daughter]. Father's periods of partial custody with [Son] shall occur on Saturday from 12 noon until 4pm. Those periods of custody are to be with the supervision of Kids First of the Assurance Group. Cost of that supervision to be borne by Father. [Girlfriend] is not to be present at the custody visits.

Trial Court Order, 10/22/2019, at 1 (unnecessary capitalization omitted).

On October 25, 2019, Mother filed a PFA petition, which is the subject of the PFA Appeal, on behalf of herself as the sole plaintiff.⁴ In the petition, Mother averred that just two days after the custody hearing, Father posted the following message publicly on his Facebook page.

This is the position you wanted me in, here I am. You have taken from me and destroyed everything I care about. You say you don't hate me, yet you keep yanking them out of my life time and time again. Fuck you bitch, send that to your fucking fat ass indignant lawyer. You and that fat fuck are nothing but backstabbing conniving bitches, and yes Jan I mean your (sic ) a bitch. One day you and everything fat ass has done to me will be returned to you tenfold, just make sure you know that when that day comes I will be on the ground in tears laughing hysterically.

PFA Petition, 10/25/2019, at 11.1. Mother averred that she viewed this post as a threat to harm her physically, and that in the past, Father had "made good" on similar threats against her. Id. She also viewed the post as a threat against her lawyer Jan Grossman, who also is the managing partner at Mother's employer, We Care Legal Services, which is a family law firm. Id. She stated that Father has "stalked, attacked, strangled, harassed, and threated to kill" her multiple times in the past. Id. The trial court entered a temporary PFA order and scheduled a final hearing for November 6, 2019.

Judge Rubenstein, the same trial judge who recently had heard the parties’ custody matter, presided over the November 6, 2019 PFA hearing. Both Mother and Father were represented by counsel, and both parents testified. The trial court summarized their testimony as follows.

At the [PFA] hearing, Mother testified that while the parties were still inside the Bucks County Justice Center on October 22, 2019, Father sent a text to Son. Mother observed the text message from Father in which Father told Son that it was Daughter's "fault" that Father could no longer see Son.

Mother testified that she became aware of Father's Facebook post after the custody hearing and she felt threatened by the post[, specifically the threat to seek retribution "tenfold."].

***

Mother felt that in his Facebook post, Father was insinuating that he was going to get "revenge" on her, or "more than likely, try to kill [her]."

When she testified, Mother stated that she first experienced Father's violent behavior when she was pregnant with Daughter 17 years ago. She stated: "The first time that it was more than a shove was when I was pregnant with Daughter[,] when he dragged me down the street in a chokehold." Mother stated that she remained in this relationship because of fear and financial difficulties.

Mother related that after Daughter testified at the custody hearing of October 22, 2019, Father sent "over 40 text messages" to Daughter, despite [the Custody Court's October 22, 2019 custody order] stating Father was to have no contact with Daughter. Mother stated that as a result of the many text messages from Father, Daughter was tearful and anxious, and Daughter thereafter reached out to her therapist for assistance.

... Mother testified about the prior multiple acts of abuse which she suffered at the hands of Father. She testified that in the past Father had hit her with his pick-up truck which caused a fractured wrist. Mother stated that in prior instances, Father had grabbed her by the throat and choked her. On

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