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In a recent custody case, the Court denied Father contact with his children except for supervised visits while they underwent therapy.  Mother filed a contempt petition asserting that Father violated the custody order when he went to a school concert and videotaped both the Mother and the child while there.

The trial court correctly dismissed the contempt petition after Father testified that he understood no contact to mean no physical contact or conversation with the children. But, as sometimes happens, the Court used the contempt proceeding to “clarify” what the order was meant to accomplish.  Specifically, the trial judge told the Father that he could not appear at the children’s activities.  Father appealed and in P.H.D. v. R.R.D. the Superior Court vacated the

“clarification.”

This is an important decision because trial court judges are frequently charged with the duty of managing unruly families who like to push the envelope when asserting their parental rights.  It may well be in this case that this was precisely what Father was trying to do.  In contempt court, however, the sole question is whether an explicit order was violated.  Period.  It is not an opportunity to “fix” an otherwise imperfect order by changing its terms.  And Superior Court judges Wecht, Bowes and Musmanno have served a purpose in reminding trial judges that if they want to amend an order, all parties need to have notice of the fact that an amendment is being considered so that they can prepare for such a hearing.  This is in accord with longstanding precedent that contempt court is not a place to modify custody orders.

Lest it appear that we are siding with Father, we note that there may well be a solid ground to amend the order.  For Father to have appeared at a recital and videotaped his child is clearly not a contempt of a no contact order.  But when we read that Father also videotaped Mother (assuming she was not part of the child’s performance) one questions whether the motivation was to record or to harass.  But if that is the issue, the P.H.D. case makes clear that everyone needs to have due process notice what the issue is so each party can prepare and bring witnesses who might show how the videotaping was either innocent or menacing.  If menacing perhaps a modification was in order.  We also note that the judge may have been trying to do the right thing but the opinion clearly points out that he skipped a procedural step (notice and hearing) which the principles of jurisprudence demand.

N.B. A curious event is reported in the case.  The guardian ad litem asserted a procedural irregularity on Father’s part that could have resulted in this appeal being quashed. Query: Is that part of a guardian’s role?

P.H.D. v. R.H.D. 2012 Pa. Superior. 246 (Nov. 13. 2012)

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Jenice Armstrong of the Philadelphia Daily News wrote a column about Beth and Daniel Shak’s divorce. The Shaks divorce was finalized in 2009, but recently Mr. Shak filed a petition to enforce the parties' settlement agreement and is seeking 65% of Mrs. Shak’s extensive (and expensive) shoe collection. Mr. Shak contends that this collection is an asset that was not disclosed as part of the parties’ property settlement agreement and that Mrs. Shak did not provide a “full and fair” disclosure of this collection nor did she list it in an inventory of her assets.

Ms. Armstrong column actually highlights a broader issue that family law attorneys come across at some point in many divorces: what is someone’s personal property worth and is it worth pursuing? For the most part, attorneys shy away from getting too far into a couple’s personal property dispute; what you pay your attorney to try to get your living couch often could have been used to go out and buy a whole living room set. It can be a cost-benefit analysis, but it can also be an important and highly emotional component of equitable distribution because it may represent a marriage’s worth of memories and experiences. 

The Shak case also sheds some light on the question as to when “personal property” becomes an “asset.” How should people deal with a situation in which someone’s personal property cost them tens or hundreds of thousands of dollars (or as alleged in Mr. Shek’s lawsuit, $500,000.00 to $1 million) during the marriage? Valuation can be as difficult  a question to wrestle with since it is not uncommon for someone’s collection to have more value to them than it does to the “market.”

Make no mistake, however, Mr. Shak is not seeking his fair share of Mrs. Shak’s shoes and handbags; he is seeking 65% of their value as a lump sum payment from his ex-wife (plus his counsel fees and costs). If Mr. Shak’s petition was about stocks or a checking account instead of women’s shoes then it would not seem as unusual to ask the Court to recognize that Mrs. Shak failed to fully disclose a martial asset and award him a portion of the value.

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Protection from Abuse (aka “PFA”) Orders are Pennsylvania’s version of what is colloquially known as the “restraining order.” What makes the PFA unusual is that it is a civil action, but has a criminal component to it, namely the punishment for violating the PFA: jail.

One of America’s longest standing legal traditions is that a defendant cannot be tried for the same crime twice. This concept is otherwise known as “double jeopardy.” Recently, a Superior Court decision addressed PFA’s and the application of double jeopardy to a defendant charged with several violations of a PFA during one episode.

The opinion for the case of Hill v. Randolph (707 MDA 2010) was filed on June 1, 2011. In this case, the defendant had physically assaulted the victim after accessing her house and in spite of repeated demands that he leave the premises. Eventually, the police were called and he was charged with two counts of violating the PFA; one count of accessing the residence and a second count for the physical assault. Mr. Randolph was ultimately found in contempt of the PFA and sentenced to six months in jail.

On appeal, Randolph argued that the Court did not follow the legislative intent of the PFA statute by depriving him of a jury trial and convicting him on multiple counts from a single incident.

The Superior Court could not disagree with Randolph more. In striking down his appeal, they found that there is nothing in the PFA statute precluding the trial court from allowing the prosecution of multiple contempt charges or the prosecution of the crimes as contempt rather than a general criminal prosecution.

Moreover, the PFA statute considered the Constitutional rights of defendants and allowed for the prosecutor, in this case the Lancaster County D.A., to utilize the PFA statute to quickly and legally send a violent offender to jail for in excess of six months.   Double jeopardy did not exist where multiple criminal actions occurred in a single episode, while the two crimes were two distinct acts and did not merge together for a single six month sentence, but stood on their own.

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One of the great frustrations to both the law practitioner and the client comes after a court order is secured directing that a thing be done or not done, only to see the opposite occur.  The premise of the American judicial system is that when Court’s speak they do so with finality and it is the obligation of the litigants to “follow” the letter of the Court’s order.

Contempt of court is defined as conduct by a litigant or his attorney tending to bring the authority and administration of the law into disrespect.  It can include any conduct tending to embarrass or impede courts in the discharge of its duties.  Ballentine’s Law Dictionary 3d (Lawyer’s Cooperative, 1969).

To the layperson, the most identifiable form of contempt is misbehavior in the physical presence of the court.  This is termed “direct civil contempt” and usually results in a summary imposition of a fine or sometimes imprisonment at the time the Court is offended.

The more common form of contempt is “indirect civil contempt.”  This is typically a violation of a Court Order outside the immediate presence of the judge.  For example, a judge orders a litigant to do something or refrain from doing something (e.g., don’t take money out of your pension account; do not leave the jurisdiction) and the litigant does not comply.

Contempt is an extraordinary remedy and because it exposes the offending party to fines or punishment, including possible imprisonment, it is strictly interpreted.  “In order to sustain a finding of civil contempt the complainant must prove certain elements to have occurred based upon a preponderance of the evidence (which is to say more true than not).  It must be shown that the contemnor (the person alleged to have violated a court order) had notice of the order or decree he is said to have violated; that his act in not complying with the order or decree was volitional and that he acted or failed to act with wrongful intent.” Harcar v. Harcar 982 A.2d 1230, 1235 (Pa. Super. 2009). See Barrett v. Barrett 368 A.2d 616,621 (Pa. Supreme 1997); In Re Trust Under Deed of Jane E. McPeak 147 Montco L.P. 285 2010).

The “mere showing of noncompliance with a court order or even misconduct is never sufficient alone to prove civil contempt.” Lachat v. Hinchcliffe, 769 A.2d at 488. Accord Bold v. Bold, 939 A.2d 892,895 (Pa. Super. 2007); In re Contempt of Cullen, 849 A.2d 1207, 1210-11 (Pa. Super. 2004) app. den. 868 A.2d 1201 (Pa. Supreme 2005).

The order which is the subject of the contempt must be “definite, clear and specific” leaving no doubt or uncertainty in the mind of the contemnor alleged to have violated the order. Lachat, supra at 489.

Contempt issues most commonly arise in the context of support proceedings and are there governed by a statute 23 Pa. C.S. 4345.  Where willful failure to comply is determined to have occurred the court has statutory authority to imprison the contemnor for six months (or until the order for incarceration is complied with).  It is also authorized to place the contemnor on probation and to fine him/her up to $1,000.00. Many attorneys labor under the impression that they are also entitled to their attorneys fees for bringing a contempt petition.  This is a remedy under a separate statute, 23 Pa.C.S. 4351, where the law states that awards of legal fees and court costs may be made where the person owing support “did not have good cause for failing to make child support payments on time.”  A subsequent Supreme Court case, Bowser v. Blum, appears to have limited attorney awards to “special situations” Bowser, 807 A.2d 830 (Pa. Supreme 2002).

So contempt can be a tricky remedy meriting consideration before it is brought.

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