J-A25019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.K., 

Appellant

v.

M.D.C.

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3499 EDA 2017

Appeal from the Order Entered October 5, 2017

In the Court of Common Pleas of Delaware County 

Civil Division at No(s): No. 2015-003199

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, J.: FILED MAY 24, 2019

T.K. (“Father”) appeals from the order finding him in indirect civil 

contempt of a custody order in this highly contentious custody and visitation 

dispute. We conclude that the underlying order M.D.C. (“Mother”) alleged

Father violated was not “definite, clear, and specific” as to the conduct that

the learned trial court subsequently held prohibited. To the contrary, the trial 

court, in virtually identical circumstances, accepted and endorsed the very 

course of conduct Father had adopted. Accordingly, we are constrained to 

reverse the order of contempt.
J-A25019-18

- 2 -

This is the third of three inter-related companion appeals sharing a long, 

complex, and somewhat convoluted history.1 However, the basic facts 

relevant to the issues in this appeal are not in substantial dispute, even though

the parties disagree about the inferences to be drawn, and a host of other 

issues.

Briefly summarized, Father is a citizen of the United States, and a 

resident of Delaware County, Pennsylvania. Mother is a native of Argentina.2 

Mother’s parents (“Grandparents”) are also from Argentina. At times, Mother 

and Father lived in Argentina. Currently, both live in Pennsylvania. 

The trial court granted Father primary physical custody and legal 

custody of both Children, in an emergency order. Mother has joint legal 

custody with regard to medical care and decisions, not at issue in this appeal. 

Mother also received partial physical custody: one hour of supervised 

visitation two times a week.

Mother was convicted on charges of assault and harassment of Father 

arising from an incident while the family was on vacation in Colorado. Father 

____________________________________________

1 Defendant/Appellee, M.D.C. (Mother), her parents, and Father have been 

involved in some form or other of custody and visitation dispute over Mother 

and Father’s two minor children, M.A.K. (born in 2009) and T.M.K. (born in 

2010) (“Children”), since at least 2011. 

2 While Father mentions only Mother’s Argentinian citizenship, he does not 

dispute her claim of dual citizenship. Mother’s citizenship is not at issue in 

this appeal. 
J-A25019-18

- 3 -

has Protection from Abuse orders against Mother in Pennsylvania, Colorado, 

and allegedly, Argentina as well.

Additionally, Mother was acquitted on charges of child abuse arising 

from the same incident. While the child abuse charges were pending, the 

Colorado court imposed significant limitations on Mother’s access to her 

Children. Those limitations resulted in the restrictions on visitation imposed 

in the Emergency Custody Order. 

While the record confirms Mother’s strong desire to have the limitations

lifted, it does not appear that they were, even after the acquittal on the child 

abuse charges. Father also alleged kidnapping or attempted kidnapping of the 

Children by Mother and the Grandparents for return to Argentina. Mother and 

Grandparents dispute these allegations. 

On June 23, 2016, Mother filed a pro se petition for contempt, claiming 

that Father intentionally disobeyed the Emergency Custody Order. 

Specifically, Mother alleged that Father took the Children on vacation to 

Disney World in Florida from June 15, 2016 to June 25, 2016, without her 

permission. This extended vacation deprived Mother of the visitation granted 

to her under the emergency custody order. 

At the hearing on Mother’s petition, held in October of 2017, Mother 

conceded that in May of 2016, Father’s counsel e-mailed her, stating that 

Father had scheduled a vacation with the children for the next month and 

suggesting make-up visitation dates. In her reply, Mother endorsed the 
J-A25019-18

- 4 -

concept of vacation for the Children in principle, but objected to the proposed 

trip, citing the “precarious situation.”3 

Mother was also concerned that the vacation could interfere with the 

timing of hearings for the final custody order. Father’s counsel indicated that 

the vacation “should not interfere with any [c]ourt dates and we are offering 

makeup time for the missed visits.” Mother reiterated her opposition to the 

vacation under the circumstances, and asked Father’s counsel if counsel had 

better knowledge of the court’s schedule. Father’s counsel responded that she 

did not.

Mother showed up at the church as scheduled for her visitation. As the 

Children were with Father in Florida, however, no visitation occurred. Mother 

did not agree to any make-up dates before the fact. However, after the 

vacation she accepted and attended two make-up visitation sessions in July.

At the close of hearing, the trial court found Father in contempt, and 

awarded one thousand dollars in attorney fees for Mother’s counsel. This 

timely appeal followed. Both Father and the trial court complied with Pa.R.A.P. 

1925. 

Father raises three questions for our review on appeal:

____________________________________________

3

In full, quoting from her e-mail to Father’s counsel, Mother said, “As you 

know from my previous declarations, I will never oppose to the children 

enjoyment [sic] but I think that this is at least unwise to plan for vacations in 

the present situation that we are in in [sic] the middle of such a precarious 

situation.” N.T. Hearing, 10/3/17, at 101.

 
J-A25019-18

- 5 -

1. Whether the trial court erred and abused its discretion in 

holding Father in contempt of the April 24, 2015 Custody Order in 

circumstances where the Order was not "definite, clear and 

specific," and there was no evidence to establish that Father 

knowingly or intentionally violated the Order?

2. Whether the trial court erred and abused its discretion in 

holding Father in contempt of the April 24, 2015 Custody Order in 

circumstances where Father’s attorney, Phyllis Bookspan, not 

Father, was the actor, and Father’s attorney acted in 2016 in a 

manner that complied with the Custody Order as interpreted by 

the trial court previously on December 29, 2015?

3. Whether the trial court erred and abused its discretion in 

holding Father in contempt of the April 24, 2015 Custody Order 

where Mother was in fact provided make-up custodial time missed 

during Father’s vacation with the children, which was consistent 

with the trial court’s December 29, 2015 interpretation of the 

Custody Order?

Appellant’s Brief, at 4. 

Our standard of review is well-settled. 

As an initial point, we note that appellate review of a finding of 

contempt is limited to deciding whether the trial court abused its 

discretion. 

Judicial discretion requires action in conformity with law on facts 

and circumstances before the trial court after hearing and 

consideration. Consequently, the court abuses its discretion if, in 

resolving the issue for decision, it misapplies the law or exercises 

its discretion in a manner lacking reason. Similarly, the trial court 

abuses its discretion if it does not follow legal procedure.

This Court must place great reliance on the sound discretion of the 

trial judge when reviewing an order of contempt. 

Lachat v. Hinchcliffe, 769 A.2d 481, 487–88 (Pa. Super. 2001) (formatting 

and citations omitted). 

We also remain mindful of these applicable legal principles:
J-A25019-18

- 6 -

An abuse of discretion is not merely an error of judgment, but if 

in reaching a conclusion the law is overridden or misapplied, or 

the judgment exercised is manifestly unreasonable, or the result 

of partiality, prejudice, bias or ill-will, as shown by the evidence 

or the record, discretion is abused. 

Kopp v. Turley, 518 A.2d 588, 590 (Pa. Super. 1986) (quotation marks and 

citations omitted). 

“Accordingly, we are confined to a determination of whether the facts 

support the trial court’s decision. Also in civil contempt proceedings the 

complaining party has the burden of proving by a preponderance of the 

evidence that a party violated a court order.” Chrysczanavicz v. 

Chrysczanavicz, 796 A.2d 366, 368–69 (Pa. Super. 2002) (citation, internal 

quotation marks, and brackets omitted). 

The right to punish for contempt is adherent in all courts. It is a 

power essential to the preservation of the court’s authority and 

prevents the administration of justice from falling into disrepute.

In considering an appeal from a contempt order, great reliance 

must be placed upon the discretion of the trial judge. The 

authority of a judge, however, to hold one in contempt, 

depriving as it does a person of liberty, is an authority that 

should be used rarely, and with extreme caution.

Marian Shop, Inc. v. Baird, 670 A.2d 671, 672–73 (Pa. Super. 1996)

(citations and internal quotation marks omitted; emphasis added). 

We need only address Father’s first issue on appeal, as it is dispositive. 

Father contends the court abused its discretion in finding that the emergency 

custody order was definite, clear, and specific in prohibiting scheduling of 

vacations that interfered with Mother’s visitation without Mother’s prior 

consent.
J-A25019-18

- 7 -

In order to support a finding of contempt, the order or decree 

which the contemnor has been held to have violated, must be 

definite, clear, and specific—leaving no doubt or uncertainty in the 

mind of the contemnor of the prohibited conduct. Because the 

order forming the basis for civil contempt must be strictly 

construed, any ambiguities or omissions in the order must 

be construed in favor of the defendant. . . . Additionally, the 

mere showing of noncompliance of a court order or misconduct, is 

never sufficient, alone, to prove contempt. 

Id. at 673 (citations omitted) (first emphasis in original; second emphasis 

added). 

To be punished for [civil] contempt, a party must have violated a 

court order. ... Nevertheless, the mere showing of noncompliance 

of a court order or misconduct, is never sufficient, alone, to prove 

contempt. [T]he order or decree which the contemnor has been 

held to have violated, must be definite, clear, and specific - leaving 

no doubt or uncertainty in the mind of the contemnor of the 

prohibited conduct. Moreover, the contemnor must have had 

notice of the order he disobeyed, the act constituting her violation 

must be volitional; and she must have acted with wrongful intent. 

Because the order forming the basis for civil contempt must be 

strictly construed, any ambiguities or omissions in the order must 

be construed in favor of the defendant.

Bold v. Bold, 939 A.2d 892, 895 (Pa. Super. 2007) (emphasis and brackets 

in original; quotation marks and citations omitted).

For clarity and completeness, we reproduce the emergency custody 

order:

AND NOW, to wit, this 24th day of April, 2015, after consideration 

of Plaintiff’s Emergency Petition in Custody and Emergency 

Petition for Return of Passports filed on April 9, 2015, Defendant’s 

Answer and Counterclaim filed April 13, 2015 and Plaintiff’s 

Amendment to Plaintiff’s Emergency Petition in Custody and 

Emergency Petition for Return of Passports and Plaintiff’s Answer 

to Defendant’s Counterclaim filed on April 15, 2015, it is hereby 

ORDERED and DECREED as follows:
J-A25019-18

- 8 -

1. Primary physical custody of [the Children], is hereby 

awarded to [Father] until further Order of Court.

2. Joint legal custody with respect to medical care and 

decisions is awarded to [Father and Mother.]

3. Sole legal custody for all else awarded to [Father] until

further Order of this Court.

4. Supervised partial physical custody of the [the Children]

is awarded to [Mother,] as follows; two sessions a week for one 

hour each, supervised by security personnel who may carry 

concealed arms and observed by an independent Spanish/English 

speaker interpreter; the said sessions to be in a classroom at St. 

Mary Magdalene Church in Media, Pennsylvania Mondays at 5:30 

PM to 6:30 PM and Thursdays at 4:15 PM to 5:15 PM; costs to be 

borne by Plaintiff/Father; no other persons are to be present at

the sessions; and [Grandparents] are not to be on the grounds of 

the church during these sessions.

5. The [c]ourt recognizes that [Mother] is subject to certain 

restrictions concerning minor children pursuant to criminal 

charges pending in the Eagle County Court of Colorado and the 

Mandatory Protection Order in Eagle County, Colorado. Therefore, 

the aforesaid supervised visitation is suspended until such time as 

[Mother’s] restrictions as they pertain to contact with the children 

are modified by the Eagle County Court of Colorado.

6. All Passports of the children, both Argentine and United 

States, to be held in protective custody by Bernard Berman,

Esquire, 20 West Third Street, Media, Pennsylvania, not to be 

released except upon written agreement of both parties, and/or 

until further Order of this Court.

7. Both parties and children shall submit to a full custody 

evaluation, which shall include psychological examinations, and 

parent/child bonding evaluations. Agreement with respect to the 

evaluator to be determined no later than April 27, 2015 and it is 

to be entered as an Order of Court.

8. Counterclaims of [Mother] are held in abeyance without 

prejudice.

 

Emergency Custody Order, 4/24/15, at 1-2.
J-A25019-18

- 9 -

At a December 2015 status hearing in the divorce proceeding between 

the parties, Mother, pro se, raised the visitation issue. Mother noted that on 

the next day, Father was taking the Children on vacation to Florida. She 

complained that she was being deprived of a visitation date, and argued that 

Father should plan vacations so she would not miss any visitation. 

In an extended colloquy, the trial court explained: 

THE COURT: Dad does have legal custody at this time to make 

those decisions. I’m not saying he can just cancel your visitation 

whenever, but he does have the right to take the children on 

a vacation. However, then you should have makeup sessions 

next week or the following week so that you can see the children.

N.T. Hearing, 12/29/15, at 48 (emphasis added). 

Nevertheless, at the October 2017 hearing on the petition for contempt, 

the same judge stated:

THE COURT: You simply just don’t take your children and go on 

vacation and say oh well, because when you do, I get a Contempt 

Petition. Now, normally, I would agree that this is a little 

blip because Mom had makeup days and I don’t think mom 

was real big on getting her answers to the dates. I don’t see 

a response that said June 30th and whatever it is, July 7th, don’t 

work. This is a little bit of a unique case and mom sees these 

children two hours a week and that was done because the parties 

wanted an evaluation and I said on that record in the transcript 

that I didn’t want an evaluator coming in here and telling me there 

was no bond with mom because she hadn’t seen them for six 

months. As it is, this is a difficult area. 

N.T. Hearing, 10/3/17, at 162 (emphasis added).

In its opinion, the trial court denies that Father had the “legal right” to 

take the Children on vacation. Trial Court Opinion, 1/11/18, at p. 8

(unpaginated). However, this conclusion is virtually the opposite of the 
J-A25019-18

- 10 -

position the trial court espoused at the divorce status hearing on December 

29, 2015. 

We agree with the trial court that this is a difficult case, and share its 

concern over the effects of the emergency custody order’s application over an 

extended period. However, it is readily apparent that neither the trial court 

nor the emergency order put Father on notice that he was at risk of being held

in contempt if he scheduled vacations that interfered with Mother’s visitation. 

Under these circumstances, we cannot conclude that the order was definite, 

clear, and specific in prohibiting Father from unilaterally planning vacations 

with the Children that interfered with Mother’s visitation.

Because the order forming the basis for civil contempt must be strictly

construed, any ambiguities or omissions in the order must be construed in 

favor of Father. See Bold, 939 A.2d at 895. Here, the omission of any specific 

requirements to pre-clear vacation dates in the order must be strictly 

construed in Father’s favor. 

Construing this doubt or uncertainty in favor of Father, as we must 

under our standard of review, we are constrained to conclude that the trial 

court misapplied the law and abused its discretion in holding Father in 
J-A25019-18

- 11 -

contempt. Because our conclusion resolves Father’s claim, we need not 

address his second or third questions, and we expressly decline to do so.4 

Order reversed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2019

____________________________________________

4 The trial court opinion treats the claim as civil contempt. Father has not 

challenged the trial court’s classification on appeal. Further, we conclude the 

distinction would not alter our result in any event.