S.B. v. S.S.

201 A.3d 774

S.B.

v.S.S.

Appeal of: S.S., Richard Ducote, Esquire, and Victoria McIntyre, Esquire

No. 753 WDA 2018

Superior Court of Pennsylvania.

Argued October 31, 2018

Filed December 24, 2018

Reargument Denied March 4, 2019

Richard L. Ducote, Pittsburgh, for appellants.

Elisabeth K. Pride, Pittsburgh, for appellee.

BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY MURRAY, J.:

S.S. (Mother) appeals from the order prohibiting Mother and her attorneys from discussing the facts in this case with members of the news media, including but not limited to print and broadcast media, online or web-based communications, and inviting the public to view existing online or web-based publications. We affirm.

A prior panel of this Court summarized the relevant factual and procedural history of this case as follows:

Child was born ... in 2006. [S.B. (Father) ] and his first wife ... adopted Child in 2007, when he was six months old.]1[Father's first wife] died ... when Child was two years old. Father continued his close relationship with [his first wife]'s extended family, and he raised Child, with their support, for the next four years. In May 2012, Father met Mother on an online dating website; they married four months later. Mother adopted Child in 2013.

^{] 1}[Father's first wife] was diagnosed with breast cancer in 1999 and underwent chemotherapy. She and Father wanted to start a family, and they began the adoption process in 2003. They contacted ... an adoption agency ... and after going through a home study ... and meeting the [adoption agency's] requirements, the adoption was finalized in February 2007. N.T. Trial, 5/20/16, at 176-78.

The parties' relationship was short-lived; in November 2013, Mother moved out of the main house and into the guesthouse. One year later, Mother left the marital residence and moved into her own home. The parties entered into a custody agreement on November 22, 2014.

Father filed a complaint in custody on June 11, 2015; Mother counterclaimed for primary custody. On October 9, 2015, the court held a hearing and entered an interim custody order pending a custody trial. The interim order expanded Father's custodial time. Days later, Mother filed a Petition for Abuse (PFA), on behalf of herself and Child, alleging Father had sexually abused Child, and the court ordered supervision of Father's custodial periods. Over one month later, after a five-day trial, the court dismissed the PFA petition.

On January 21, 2016, the court scheduled a custody trial to be held in April of that year; on February 2, 2016, Mother filed a second PFA petition on behalf of herself and Child, again alleging Father's sexual abuse of Child.]2 Senior Judge Lee J. Mazur denied the petition without a hearing and recommended the petition be presented again before the Honorable Kim Berkeley Clark, who was presiding over the custody matter. Judge Clark denied the petition without a hearing.

^{] 2} On February 4, 2016, Mother filed an emergency petition for special relief, indicating Child made additional disclosures of sexual abuse and that Child was refusing visits with Father. The court suspended visitation and contact between Father and Child. That same day, the court appointed Maegan Susa Filo, Guardian ad litem (GAL), to represent Child's best interests. On April 11, 2016, after meeting with the parties, Child, communicating with counsel for both parties, reviewing expert reports, GAL made several recommendations, including the following:

Child be immediately removed from Mother's care and placed with Father after attending the Family Bridges program;

Child should be immediately reunited with [Father's first wife]'s extended family;

Child should begin attending his former synagogue;

Child should begin to attend his [ ] adoption group in which he participated previously with Father;

Father should be granted sole legal custody of Child;

Both Mother and Father should follow any recommendations made by Dr. McGroarty for each party's mental health therapy.

Report and Recommendation of the Guardian ad litem , 2/4/16, at 8.

The twenty-three day custody trial commenced on May 20, 2016, and concluded on November 18, 2016. The parties presented 24 witnesses and offered 216 exhibits, 193 of which were admitted by the court, in addition to the exhibits from the PFA trial that were incorporated into the custody trial.

On December 12, 2016, Judge Clark entered her findings of fact on the record and entered an order granting Father sole legal and sole physical custody.

S.B. v. S.S. , 74 WDA 2017, 2017 WL 4848400, at *1-4 (Pa. Super. Oct. 20, 2017) (unpublished memorandum). On December 14, 2016, the trial court entered an amended custody order, but did not materially alter its award of custody in any way. Mother filed a timely appeal; this Court affirmed the trial court's order on October 20, 2017.¹ Id . Mother filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied.

On February 1, 2018, before the [Pennsylvania] Supreme Court denied allowance of appeal, a press release [was] issued announcing an upcoming press conference regarding this case.

On February 7, 2018, Mother's attorney, Richard Ducote, Esquire held a press conference concerning this case and Mother's obvious disagreement with the court's findings and orders.

Although the Child is not named, Mr. Ducote identifies Mother by name and included a reproduction of the child's in-court testimony and forensic interview.

The press conference, which was held on YouTube, contains a link to a DropBox folder containing pleadings from the case[,] a transcript of the Child's testimony and a copy of the Child's forensic interview at Children's Hospital Child Advocacy Clinic. Mother's name is contained within these documents. The child's name is redacted except for the first letter of his first name[,] ‘F.’

On February 28, 2018, an article about the case appeared in the Pittsburgh City Paper . The article began with the graphic testimony of alleged sexual abuse by Father against the Child and contained the age of the child and the name of the Child's best friend at the time the testimony was given.

Trial Court Opinion, 7/6/18, at 5 (numbered bullets omitted).

On April 27, 2018, Father presented a motion for sanctions and other relief requesting that, based on the conduct of Mother and her attorneys, they be "immediately enjoined from discussing this case publicly in any forum" and "that Mother and her counsel be ordered to remove all documents relating in any way to this case from public access...." Motion for Sanctions and Other Relief, 4/27/18, at ¶ 34-35. That same day, the trial court held an on-the-record hearing on Father's motion. At the conclusion of the hearing, the trial court denied Father's motion for sanctions, but granted his request to prohibit Mother and her attorneys from speaking publicly about the case in any way that could cause Child to be identified, entering the following order, in relevant part:

1. [Mother]; Richard Ducote, Esquire; and Victoria McIntyre shall NOT direct or encourage third parties to speak publicly or communicate about this case including, but not limited to, print and broadcast media, on-line or web-based communications, or inviting the public to view existing on-line or web-based publications.

2. [Mother]; Richard Ducote, Esquire; and Victoria McIntyre may provide public testimony in the State House and/or Senate and in the United States Congress and Senate about parental alienation, sexual abuse of children in general or as it relates to this case. However, in providing such testimony, they shall NOT disclose any information that would identify or tend to identify the Child. [Mother] shall NOT publically state her name, the name of the Child, or [Father's] name. Attorney Ducote and Attorney McIntyre shall NOT publicly refer to the [Mother], the Child, or the [Father] by name or in any manner that would tend to identify the aforementioned parties.

3. [Mother] and Counsel shall remove information about this case, which has been publically posted by [Mother] or Counsel, including but not limited to, the press release, the press conference on the YouTube site, the DropBox and its contents, and other online information accessible to the public, within twenty-four (24) hours. [Mother] and Counsel shall download or place the aforementioned information onto a thumb drive, which shall be filed with this court.

The Oral Motion to Stay This Order of Court, made on behalf of [Mother] is denied.

This Order does not prohibit any party or counsel from publicly speaking or expressing an opinion about the Judge, including disclosing the entry of this Order of Court, after the information has been removed as set forth above. However, such expression shall NOT contain the name of the Child or other information,which would tend to identify the Child.

Findings of Fact and Order of Court, 5/1/18, at 4-5 (emphasis in original). This timely appeal followed. Both Mother and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

On appeal, Mother presents a single issue for our review and consideration:

Did the trial court legally err and abuse its discretion in granting [Father's] Motion for Sanctions and Other Relief, in part, and entering a gag order constituting a content-based restriction on speech, prohibiting [Mother], Richard Ducote, Esq., and Victoria McIntyre, Esq. from speaking publicly or communicating about this case and requiring them to remove information related to the case posted online, in violation of their rights under the First and Fourteenth Amendments to the United States Constitution and Article 1, [Section] 7 of the Pennsylvania Constitution, and without any legal or factual justification in support?

Mother's Brief at 3.

Mother contends that the gag order violates her free speech rights contained in the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. She...