The Superior Court decision this week in Jacoby v. Jacoby is non-precedential but borrows heavily from a 2011 precedential decision in an Orphans’ Court appeal, In re Estate of Brown. The Brown case reminds us that judicial orders can’t drag non parties into litigation without procedural due process.

While a recitation of procedural history often sheds light, the Jacoby history seems to shed more heat than anything else. The Jacobys have been in court in Berks County since 2016. There was a 2017 order, a 2019 appeal, a 2020 appeal and three more in 2021. Suffice to say that it appears father was at some point incarcerated for civil contempt of a custody order and stepmother decided that it was time to “lay everything out” for the public. She did so on the sacred website for all judicial grievance; Facebook. Stepmom published the typical 95 Theses. Her husband, the child’s father, had complied with the order and should not be jailed. The judge had “gone rogue.” The child fears her mother, but the court has adopted a stance that there is parental alienation on dad’s part. Father’s law practice was losing money because of all of this.

As one might expect, mother’s counsel presented stepmom’s post to the court and contended that the post itself was evidence of alienation. Father’s counsel responded that the Facebook content was immaterial. This writer suspects that the child heard much of this at home but once “published” electronically, the child now can also hear about these issues from friends.

In a remote hearing the presiding judge indicated that he had not thoroughly read the Facebook rendition of life but that he was ordering the parties and stepmother to desist from any public comment about the child. He also ordered stepmother to remove the posts forthwith. A written order followed stating that Father and stepmother “shall NOT use online or web-based communications to discuss this matter” and that Father and stepmother were enjoined from posting information regarding the child.

This is a slippery slope to begin with. Article VII of the Pennsylvania Constitution says: “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Although family lawyers don’t often wander into the rules governing equity proceedings, Pa.R.C.P. 1531 and Pa.R.A.P. 311(a) (4) allow for immediate appeals of orders circumscribing free speech. Those rules were not part of the Jacoby opinion.

In the Jacoby case, Father (not stepmother) filed an appeal from the restraining order. The appeal asserted that the court could not act to prohibit or demand conduct by a non-party. It seems Father may have also asserted that the Order impinged upon his own first amendment rights but the opinion notes that Father later withdrew eight of his nine issues on appeal. That battle, first amendment rights versus parental responsibilities, seems left for another day.

Now for the procedural fun. Father’s appeal, once stripped of his claims of his first amendment privilege by his withdrawal of it, left only stepmom’s free speech. The problem is that the person affected by that order was not father and not a party to the case.  The Superior Court held that a petition “enforcing” a trial court order is appealable, although this writer recalls that “enforcement” without a corresponding sanction is not appealable. Jurisdiction in this case is premised upon cases holding that denial of an enforcement order is appealable. Flannery v. Iberti, 763 A.2d 927 (Pa.S. 2000); Basham v. Basham, 713 A.2d 673, 674 (Pa. S. 1998).

As for whether Father has the right to appeal an order directing his wife’s conduct, the appellate decision struggles with his standing to assert a non-party’s right to challenge such an order. But it backs into the fact that an order entered against a person not before the court is a nullity and relies upon Estate of Brown at p. 1205. Brown involved an estate surcharge imposed upon an estate’s guardian and her husband where the husband was not a party to the matter.

As sometimes happens, the more interesting question of prior restraint of speech in custody proceedings was left on the table. From this writer’s viewpoint, any prior restraint in derogation of freedoms of speech violates the constitution(s). But, a parent’s insistence on free exercise may be a factor in deciding a child’s best interests. More challenging is the matter of how a stepparent’s decision to let the world know her views of a custody matter should impact a parent’s custodial rights. This involves analysis of the language from Stanley v. Illinois, 405 U.S. 645 and Troxell v. Ganville, 530 U.S. 57 (2000).

Jacoby v. Jacoby 972 M.D.A. 2021 (March 1, 2022).