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HomeMy WebLinkAbout2015-5774 K. A. W. n/k/a/ K. A. M., Plaintiff v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT R. B. W., Defendant 2015-05774 CIVIL TERM IN RE: CROSS PETITIONS FOR CONTEMPT OPINION AND ORDER OF COURT PLACEY, C.P.J. 9 November 2018 PROCEDURAL HISTORY This domestic action involving the parents’ now four year old son began in October 2015, and a first custody order was entered in November 2015 as a result of conciliation. Most recently, Mother filed a petition for contempt in March 2018, which sought contempt for violations of the third custody order of November 2017. Father filed an answer including his own counter-petition for contempt in April 2018. The matter was sent to the custody conciliator; however, conciliation was not successful this time and a trial on the cross petitions for contempt was held on October 3, 2018. This decision was promised by October 19, 2018; however, the delay was caused by court workload that is partly described later. This Opinion is in support of the findings of contempt and custody modifications found in the Order of Court that follows. 2015-05774 CIVIL TERM FACTS K. A. M. (Mother) alleges that R. B. W. (Father) communicates in a “vile and offensive manner” at custody exchanges, to the child about Mother, and in communications to Mother including when the minor child is present. Further, Mother alleges that Father smokes marijuana and cigarettes in the presence of the child, and that he has failed to complete a parenting program. Lastly, Mother alleges Father has refused to follow the haircut and nail trimming provisions of the custody order. Father’s contempt petition alleges that Mother has failed to tell him that her husband was charged with a DUI, and that Mother and Stepfather are telling the minor child that he has two “daddies.” Father also requests legal fees in the amount of $1000.00 Mother presented various exhibits of the “vile and offense” language Father used in communications with her. Mother presented an exhibit of text messages from November 2017 through February 2018, in which Father went on a diatribe against Mother, Mother’s grooming of son, and Mother’s medical care for son; the exhibit included more than 26 uses of the word “fuck” – as an adjective, adverb, noun, and verb. Father also called Mother terms used to describe a female dog and a woman’s genitals; however, it was clear from the context that Father’s choice of these words was meant to be derisive. Father also called into question the pedigree of Mother’s other child, which Father is alleged to have discussed the other child’s lineage in derogatory terms with son. On at least one occasion in the presented text communications, Mother uses the word “fuck” as an adjective towards Father. The texts also show Father repeatedly 2 2015-05774 CIVIL TERM asked Mother to stop texting him, sometimes in childish ways, and other times Father reduced his request to vulgar terms. Mother also presented an exhibit showing that based on events that occurred before July 25, 2017, Father is prohibited from all Bank of America properties. Mother’s final exhibit was a summary of the $4,924.08 in legal fees incurred from February 2018 through September 2018. This amount reflects legal services to address the contempt issues and to include preparation and attendance at two conciliation conferences that failed to successfully resolve these matters. Mother’s testimony related that Father was not complying with the terms of the various agreed upon custody orders, the use of a computer app that would facilitate communications. The report from Mother is that co-parenting is not working. Father reported that even though Mother knows he works an evening schedule, generally until midnight, she still constantly texts him inappropriately during working hours expecting a response. Father indicates he does not smoke in front of his son, but acknowledges smoking. During testimony Father referenced the possessive “my” son. Father also reports Mother encourages the child to improperly refer to Stepfather as “daddy.” Father supplied a certificate of completion of the custody workshop through the Family-Child Resources, Inc. The parents acknowledge that since beginning to use the “Our Family Wizard” computer application, the level of conflict has reduced; however, the continued tension between the two was visible and palpable in the courtroom. DISCUSSION 3 2015-05774 CIVIL TERM Statement of law. The custody order in effect at the time of the alleged violations establishes the law to be followed. The parties were operating under an agreed upon third custody order dated November 3, 2017, issued after conciliation. This third order again provided for shared legal custody of the child, with Mother having primary physical custody subject to Father’s partial periods of physical custody on alternating weekends, Friday through Sunday, with the exchange being at the Spring Garden Township Police Department, and every week an overnight on Tuesday through Wednesday. Paragraph Thirteen of that order provides both parents shall have the child’s hair cut at Bella Donnan. Paragraph Fourteen specifically provides that the parents shall determine the proper length of the child’s nails and ensure that they are only cut to that length. Paragraph Fifteen provides for that the parents shall not possess or use illegal substances, nor consume alcohol to the point of intoxication immediately prior to and during custody periods. Paragraph Fifteen also provides that both parents shall refrain from smoking cigarettes or using other tobacco products inside their residence, vehicle, or any confined area during custodial periods. The parents further agreed that they would not do or say anything that may estrange the child from the other parent and that they shall speak respectfully of the other. Since May 1, 2018, the parents have been operating under a fourth custody order that vacated and replaced the November 3, 2017 Order. Father’s new counsel entered her appearance prior to this latest conciliation conference. This fourth order maintains the same legal and physical custody with some holiday modifications for the upcoming years. The new order adds to Paragraph Twelve directions for Father when 4 2015-05774 CIVIL TERM placing a phone call to Mother and further permits reasonable phone contact with the non-custodial parent. The new order adds for Father to attend a family seminar and for the parents to enter family therapeutic counseling, as well arranging a play therapist that accepts their insurance. Mother was required in the new order within one week to initiate the use of an acceptable computer application to be used by both parents to communicate about the child and activities. The conflict zone paragraph that prohibits the parents from doing or saying anything that may estrange the child now contains added language that no derogatory comments are to be made about either parent or their families. Finally, the new order provided for either parent to schedule a follow up custody conciliation conference to discuss the ongoing parenting plan and to determine whether the hearing would be necessary to address both contempt petitions. The harassment by communication or address criminal statute provides that a person commits a misdemeanor of the third degree if, with intent to harass another, he makes repeated communications in offensively coarse language. 18 Pa.C.S. Section 5504(a)(2). Subsection (a)(2) targets “offensively coarse” language. “Coarse” is commonly understood to mean “crude or unrefined in taste, manners, or language.” Webster's New Collegiate Dictionary, 214 (G. & C. Merriam Co., 1977). The fact “coarse” is included in a separate subsection bespeaks a distinguishing of the sexual word from the merely coarse word. Thus, to be “lewd, lascivious, or indecent” within the meaning of subsection (a)(1), the words or language must be of a sexual nature, as opposed to being merely “offensively coarse.” Put another way, harassment by “merely coarse” language will constitute a crime only in repeated communications (subsection (a)(2)); however, a single incident may suffice if the harassing language is sexual in nature (subsection (a)(1)). Commonwealth v. Fenton, 750 A.2d 863, 866 (Pa. Super. 2000). 5 2015-05774 CIVIL TERM Application of law to facts. Some perspective is necessary for the parents to understand the positions taken in this decision. At the same time this case was ruminating for a decision, a juvenile case was being heard on multiple days, in which a thirteen year old female had burglarized a relative’s home by pushing in a widow air conditioner to gain entry and then stole liquor to feed her addiction. The juvenile’s father is long absent in her life – currently he is in prison for heroin related offenses – which is not unusual as 78% of the children seen in juvenile court come from single- parent or no-parent homes. The juvenile’s mother could not help or control her and the juvenile was placed in a detention facility for her own safety and that of others. In the intervening weeks, she has gone from combative behavior toward the court and probation officers, because she was not immediately allowed to return to her home, to an understanding that she has to earn her way home and continue to do in order to remain at home. She is home now with an electronic monitor and in home family services, to help her and her family to recognize the destructive dangers she faces, and intensive outpatient therapy – all at the age of thirteen. Also being dealt with during this decision’s authoring is the homicide of a six- week old infant at the hands of one of his parents. The review of this death for pretrial purposes revealed in testimony, transcripts, and pictures that the child, in layman’s terms, suffered injuries to both parts of his brain, it had been bleeding in many areas; that the brain had begun to deteriorate from chronic injuries likely due to repeated lack of oxygen; the child had internal eye bleeding areas too numerous to count; and numerous fractures of the skull, ribs, arms and leg injuries that appear to be caused by jamming a thumb into son’s eye sockets, dropping son, and holding son in a forceful 6 2015-05774 CIVIL TERM manner that would have caused fractures, left bruising, and hand impressions – all at the age of six weeks. It is with this perspective that it can be said that Mother and Father herein are NOT bad or evil parents. This court sees wicked and deficient parents weekly, these parents are not them; are Mother and Father sometimes misguided adults, who do not use the resources provided to them – certainly. Each parent has competent counsel, who should be telling them not to engage in contemptuous behavior, avoid the tit-for-tat conduct, and follow your agreement. Conciliators will facilitate the establishing of an agreeable custodial arrangement to the best of the parents abilities as aided by counsel, and are willing to do so again and again. Lastly, counsel should be telling the parents that the follicly challenged court does not want to adjudicate who does what about haircuts or other such life trivialities; the court will not referee your disputes or decide the “better” parent; it will make decisions that you, the parents, will then have to live with for better or worse. Mother’s claim that Father is contemptuous by his vile and offensive language is spot-on; it is harassment. To paraphrase then Judge Eakin, now retired Justice Eakin, from the Fenton opinion, Father’s intentional and repetitive “use of the ‘F word’ certainly wins him no praise for eloquence or intelligence” but it is offensively coarse and flouts the criminal statute, which, together with the childish name calling, are found to be acts of contempt of the third custody order. To deter such behavior a sanction is warranted; however, it is not the court’s intention to reward the other parent for this outrageous behavior, thus, the imposition of a sanction will go to the Cumberland County Bar Foundation for this and any future transgressions by either side. 7 2015-05774 CIVIL TERM Father’s admission that he smokes is not a de facto violation of Paragraph Sixteen’s prohibition “from smoking cigarettes or using tobacco products inside their residence or vehicle or in a confined area during custodial periods.” It is the remnants of accumulated smoke on the child when he is exchanged that violates the express terms of their agreement and must stop; secondhand smoke has the same harmful chemicals that smokers inhale. Father must be cognizant of this and clean the smoking remnants from the house, car, or limited area where the child is to be in order to be in compliance with this paragraph. As for the allegation that Father smokes marijuana, a paragraph will be added to the order to subject both parents to substance abuse testing. Lastly, as for the haircut and grooming, this shared responsibly shall be delegated in the custody modification on a monthly basis. Father’s request for contempt over Mother’s husband new criminal charges is unfounded. A review of the civil docket indicates that it was reported in the criminal record verification form submitted with the request for a change of custody. A quick publically available internet search found the charges and their disposition at docket CR-3823-2016, which bears a county intermediate punishment sentencing date of June 13, 2017. The allegation of Father that son is being told by Mother that he has two “daddies” has not been proven as a violation; however, it is worthy of addressing. It shows that Father has concerns that he is being replaced as a father. It also expresses the lack of coordination and conversely the conflict between the parents. The legal system has given parents opportunities to address this simple issue, but jointly they have not utilized it, and have now it has devolved into this strife to be dealt with in a 8 2015-05774 CIVIL TERM court order. Suffice it to say that there are enough words in the English language to denominate multiple paternal parents such that Father’s designation will not overlap. Father has chosen “daddy” or “dad” for his moniker, so stepfather will need to use another word for his paterfamilias name of respect; under no circumstances should the child call stepfather by his first name, and Mother and Father should use that chosen name by stepfather accordingly. Lastly, the custody schedule is rearranged to minimize the direct contact between parents at exchanges by utilizing the daycare for exchanges. It retains the same number of overnights for each parent. The new schedule will only have one contact exchange, on a Sunday at a police station for Father’s pickup. If the parents can work together, as is expected of them by the court, there is plenty of opportunity for additional time within this schedule. ORDER OF COURT th AND NOW, this 9 day of November 2018, upon consideration of the cross- petitions for contempt and following testimony, contempt is found and the custody order of May 1, 2018 is modified as follows: 1. Father is found in contempt and is SANCTIONED and ORDERED to pay $250.00 to the Cumberland County Bar Foundation. Payment of this sanction is due within thirty (30) day to the Foundation or collections proceedings will be initiated by the court upon notice from the Foundation. 2. If either parent continues use the “F-word” in any custodial communication it will cost that parent $50.00, payable to the Foundation, for each use of the word satisfactorily shown to the court. 9 2015-05774 CIVIL TERM 3. Father’s periods of partial physical custody from Paragraph Four shall be amended as: a. Father’s alternate weekends are extended from daycare pickup Friday to daycare return on Monday, as part of a weekly Sunday overnight. b. Father’s weekly overnight is now Sunday at 4:00 p.m. through return to daycare on Monday. 4. Paragraph Thirteen is amended so that Mother is responsible for this grooming in the odd months of the year and Father is responsible in the even months of the year. 5. Paragraph Fifteen is amended to include that either parent may request the other parent to submit on a periodic basis to chemical testing to ascertain consumption of prohibited or illegal substances. The parent making this request shall bear all the cost of sampling and testing. The parent receiving the testing request shall submit within 24 hours to the local testing location for sampling of their blood, hair, or urine. Any results of this testing are to be shared with the other parent upon receipt and under no circumstances are the results to be made public, but will be available to the court for an in camera review upon appropriate request to the court. 6. Paragraph Twenty-one is amended to be the primary method of parent custodial communications and any requests made therein shall be 10 2015-05774 CIVIL TERM responded to within 24 hours. Father SHALL update his work schedule as it changes using this application. 7. Paragraph Twenty-three is amended to be the emergency method of communication, which shall include direct texting, i.e. not using the designated computer application. Further, Mother SHALL NOT text Father between the hours of 4 p.m. and midnight on any day he is known or thought to be working EXCEPT in cases of an emergency. 8. If non-emergency contact is initiated by Mother via the emergency method during the above proscribed hours, Mother shall be sanctioned and it will cost her $50.00, payable to the Foundation, for each use of the communication violation satisfactorily shown to the court. 9. An emergency is a serious illness requiring immediate medical treatment or an unforeseen combination of circumstances that calls for immediate parental action or an urgent need for parental assistance or relief concerning the child. 10. Paragraph Twenty-five is amended to include that parents, stepparents, grandparents and all extended family shall promote the natural development of the child’s love and affection for all of his family. The parents shall promote the affections of their child toward the other parent or the other parent’s extended family and SHALL make a conscious effort to do so. To the extent possible, the parents SHALL prevent third parties from alienating the child’s affections from the other parent as well as the other parent’s extended family. Further, each parental figure SHALL refer 11 2015-05774 CIVIL TERM to the other by the appropriate role name such as mom, dad, pop, papa, bà ba, grandmother, or other familial name of respect. The remainder of the May 1, 2018 Order of Court not modified or amended above remains in full force and effect. No further relief is granted at this time. By the Court, /s/Thomas A. Placey Thomas A. Placey C.P.J. Distribution: Joanne Harrison Clough, Esq. Leanne M. Miller, Esq. Cumberland County Bar Foundation 12