J-A16025-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

VASYL S. KOVALCHUK

v.

YELENA V. KOVALCHUK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 359 MDA 2023

Appeal from the Order Entered February 7, 2023

In the Court of Common Pleas of Cumberland County Civil Division at 

No(s): 2016-03340

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 3, 2023

Pro se Appellant, Yelena V. Kovalchuk (“Mother”), purports to appeal

from the trial court’s February 6, 2023 order finding that Mother is in contempt 

of court and directing her to report for sentencing.1 After careful review, we

affirm. 

The trial court summarized the factual and procedural history of this 

case as follows:

This appeal arises from a hearing on [Appellee’s, Vasyl S. 

Kovalchuk (“Father”),] Petition for Contempt, after which this 

[c]ourt entered an Order finding Mother ... in Contempt of the 

Custody Order dated September 30, 2022. Thereafter, Mother 

was sentenced to 6 months[’] incarceration with a condition of 

purge that she return the minor children to Father’s custody. 

____________________________________________

1 This order was entered on February 6, 2023, but dated February 3, 2023. 

However, as discussed infra, Mother should have appealed from the trial 

court’s later February 7, 2023 order imposing sanctions. 
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This matter has a long and arduous procedural history.1 Most 

recently, the parties were before the Honorable Carrie E. Hyams 

for a full custody trial. After trial, Judge Hyams entered an Order

[on September 30, 2022,] granting Father sole legal and physical 

custody of the parties’ minor children, M.K. (YOB 2006) and J.K. 

(YOB 2008) (collectively, “the children”), and restricting Mother to 

periods of supervised physical custody only. Mother appealed said 

Order, but her request for supersedeas was denied. Ultimately, 

the September 30, 2022 [Order] was affirmed by the Superior 

Court. [See Kovalchuk v. Kovalchuk, 296 A.3d 587 (Pa. Super. 

2023) (unpublished memorandum).] 

1

Including this appeal, Mother has appealed Orders in this 

matter eight times. See Superior Court docket numbers 

1687 MDA 2017; 695 MDA 2018; 1086 MDA 2019; 1470 

MDA 2019; 448 MDA 2021; 537 MDA 2022; and 1420 MDA 

2022. 

Mother failed to return the children to Father’s custody, and Father 

filed a Petition for Contempt of the September 30, 2022 Custody 

Order and a Petition for Special Relief seeking the return of the 

children and coercive incarceration of Mother.[2] Judge Hyams 

recused from the matter, and this [c]ourt was assigned to hear 

the Petitions. On January 4, 2023, this [t]rial [c]ourt held a status 

conference to inform Mother that Father was seeking coercive 

incarceration and inform her that she would be entitled to the

services of the Public Defender. A hearing on the Petitions 

commenced on February 3, 2023. 

At the hearing, Father introduced evidence that Mother had, after 

the issuance of the September 30, 2022 Custody Order, removed 

____________________________________________

2

In Father’s Petition for Special Relief, Father alleged, inter alia, that on 

October 6, 2022, the parties’ daughter was scheduled to leave school early for 

an orthodontist appointment. Father’s Petition for Special Relief, 10/14/22, 

at ¶ 5. Father averred that he arrived to pick the child up and was informed 

that she had already departed the school. Id. at ¶ 6. He said he was 

presented with an early dismissal note, indicating that the child had been 

picked up by Mother. Id. at ¶ 7. Despite attending the child’s orthodontist 

appointment, Father claimed that Mother chose to take the child home with 

her, even though the September 30, 2022 order requires Mother’s custody to 

be supervised. Id. at ¶ 8. Father stated that he believes that the children 

have been in Mother’s custody since the issuance of the September 30, 2022 

order. Id. at ¶ 9. 
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J.K. from school on October 6, 2022[,] to take her to the 

orthodontist, cancelled several counseling and medical 

appointments for the children, and made other medical 

appointments for the children all while having no legal custody. 

Father also offered that the children remain in Mother’s custody 

against the September 30, 2022 Order and that[,] while in 

Mother’s custody, the children have been missing school. 

Mother offered her explanations as to Father’s allegations. Mother 

denied that she was in violation of the [O]rder because the 

children were not residing with her, but rather, Mother’s sister was 

residing at Mother’s house with the children, and Mother was 

residing at her sister’s house with her sister’s children. Mother 

also denied that the Order precluded her from signing forms to 

remove the children from school, to which the [c]ourt informed 

her that because she does not have legal custody, she could not 

remove the children from school. 

Mother’s main defense, however, was that she could not get the 

children to obey the Order because they are “strong in their belief”

that they do not want to see Father because he is “abusive.” 

Mother testified that she believes that she is not violating the 

Custody Order because the children are refusing to abide by it, 

and she “should not be liable for something that the children 

refuse to do.” 

Mother also asked this [t]rial [c]ourt to consider two affidavits of 

the children that she had filed of record. These affidavits state 

that the children do not want to live with Father and believe that 

Judge Hyams’ assessment of the custody situation was wrong. 

They also disparaged Judge Hyams; the [g]uardian ad litem, 

Hannah Herman-Snyder, Esquire (hereinafter “GAL”); and Jamie 

Orris, the children’s reunification counselor. They asked this 

[t]rial [c]ourt not to incarcerate Mother because they need her, 

and Father is engaged in a “smear campaign” against her. When 

questioned about the authenticity of the affidavits, Mother told ... 

this [t]rial [c]ourt that it could verify the information with the 

children themselves. 

Ultimately, this [t]rial [c]ourt did not find Mother’s testimony to 

be credible and found her in violation of the September 30, 2022 

Custody Order. Father requested coercive incarceration, arguing 

that all other methods of sanctioning Mother had not worked. 

Mother first asked this [t]rial [c]ourt to delay sentencing because 

the September 30, 2022 Order was on appeal. After being 
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informed, again, that her supersedeas had been denied, Mother 

urged this [t]rial [c]ourt to adopt the sanction listed in the 

September 30, 2022 [Order], namely, that Mother would be fined 

$20 per day for each day that the children were not returned. 

This [t]rial [c]ourt set sentencing for February 7, 2023, giving 

Mother four days to comply with the Custody Order and return the 

children to Father. This [t]rial [c]ourt informed Mother that if she 

were to return the children to Father, she would have satisfied any 

purge condition of incarceration, but if she did not, she should be 

prepared to stand committed. Mother appeared for sentencing 

and informed this [t]rial [c]ourt that she did not return the 

children, and Mother was then sentenced to six months 

incarceration, with a condition of purge that the children be 

returned to Father’s custody.28

28 ... Mother was subsequently released from incarceration 

after Mother’s parents returned the children to Father. 

Trial Court Opinion (“TCO”), 3/21/23, at 1-4 (most footnotes and internal 

citations omitted). 

On February 22, 2023, Mother filed a notice of appeal, purporting to 

appeal from the trial court’s February 6, 2023 order, which found Mother in 

contempt and instructed her to report for sentencing on February 7, 2023.3, 4 

However, “[u]nless sanctions are imposed, an order declaring a party in 

contempt is interlocutory. ... A threat to hold a party in contempt at some 

future time if a decree is not performed or a threat to impose sanctions in the 

future is neither final nor appealable.” Genovese v. Genovese, 550 A.2d 

1021, 1022-23 (Pa. Super. 1988) (citations omitted). Thus, the trial court’s 

February 6, 2023 order is interlocutory, as it did not impose sanctions. 

____________________________________________

3 Again, this order was dated February 3, 2023, but entered on February 6, 

2023. 

4 Mother attached a concise statement to her notice of appeal. 
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Instead of appealing from the February 6, 2023 order, Mother should 

have appealed from the trial court’s February 7, 2023 sentencing order, which 

— due to the finding of contempt — mandated that she pay a fine of $500.00 

and undergo imprisonment for six months, with the condition that she will be 

released when the children are returned to Father’s custody and control. 

Nevertheless, despite Mother’s appealing from the incorrect order, we decline 

to quash her appeal, as the trial court subsequently imposed sanctions in its 

February 7, 2023 order and Mother filed her notice of appeal on February 22, 

2023, after both orders were entered. See Commonwealth v. Jones, 2020 

WL 686215, at *2 n.2 (Pa. Super. filed Feb. 11, 2020) (observing that “this 

Court regularly amends captions to reflect the properly-appealed-from orders 

when parties designate incorrect orders in their notices of appeal”) (citations 

omitted); see also Pa.R.A.P. 126(b) (providing that unpublished, nonprecedential memorandum decisions of the Superior Court filed after May 1, 

2019, may be cited for their persuasive value). As such, we have amended 

the caption accordingly and proceed to the merits of Mother’s appeal. 

On appeal, Mother raises a single issue for our review:

The question presented is whether the Court of Common Pleas 

abused its discretion in imprisoning ... [M]other by ignoring a 

specific provision contained in the Order that limited the 

opponent’s remedy to twenty dollars per day of noncompliance.
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Mother’s Brief at 5-6.5 

“In reviewing a trial court’s finding on a contempt petition, we are 

limited to determining whether the trial court committed a clear abuse of 

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

trial court when reviewing an order of contempt.” Rogowski v. Kirven, 291 

____________________________________________

5 Even though the children have been returned to Father and Mother has been 

released from jail, Mother’s appeal is not moot. See TCO at 4 n.28. This 

Court has explained:

As a general rule, an actual case or controversy must exist at all 

stages of the judicial process, or a case will be dismissed as moot. 

An issue can become moot during the pendency of an appeal due 

to an intervening change in the facts of the case or due to an 

intervening change in the applicable law. In that case, an opinion 

of this Court is rendered advisory in nature. An issue before a 

court is moot if in ruling upon the issue the court cannot enter an 

order that has any legal force or effect.

This Court will decide questions that otherwise have been 

rendered moot when one or more of the following exceptions to 

the mootness doctrine apply: 1) the case involves a question of 

great public importance, 2) the question presented is capable of 

repetition and apt to elude appellate review, or 3) a party to the 

controversy will suffer some detriment due to the decision of the 

trial court.

Orfield v. Weindel, 52 A.3d 275, 277-78 (Pa. Super. 2012) (citations 

omitted). Here, Mother’s non-compliance with the September 30, 2022 

custody order could again subject her to civil contempt proceedings, including 

the possibility of coercing her compliance by imprisoning her. See id. at 278 

(determining appeal from contempt order is not moot where, although the 

appellant had been released from jail, he had not paid off his arrears and was 

still subject to the trial court’s order to make monthly payments). Therefore, 

because the question presented is capable of repetition and apt to elude 

appellate review, we will not deem Mother’s appeal moot. 
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A.3d 50, 57 (Pa. Super. 2023) (citation, quotation marks, and brackets 

omitted). Further, 

[t]o be in contempt, a party must have violated a court order, and 

the complaining party must satisfy that burden by a 

preponderance of the evidence. Specifically, the complainant 

must prove certain distinct elements: (1) that the contemnor had 

notice of the specific order or decree which he, or she, is alleged 

to have disobeyed; (2) that the act constituting the contemnor’s 

violation was volitional; and (3) that the contemnor acted with 

wrongful intent.

Id. (cleaned up). 

In her appellate brief, Mother argues that “[a] sanction of $20/day 

cannot become a sanction of incarceration.” Mother’s Brief at 9. In making 

this argument, she points to the September 30, 2022 custody order. That 

order stated, in relevant part, the following:

1. Legal Custody: [Father] shall have sole legal custody of the 

Minor Children, M.[]K. and J.[]K. Father shall make all major nonemergency decisions affecting the Minor Children’s general wellbeing, including, but not limited to, all decisions regarding their 

health, education and religion with a view toward obtaining and 

following a harmonious policy in the Children’s best interests. 

Father shall notify [Mother] of any activity or circumstance 

concerning the Children that could reasonably be expected to be 

of concern to her. Neither party shall attempt, or permit anyone 

else to attempt, to alienate the affections of the Children from the 

other parent. Pursuant to the terms of 23 Pa.C.S. § 5336, each 

parent shall be entitled to all records and information pertaining 

to the Minor Children, including, but not limited to, medical, 

dental, religious or school records, and the residence address of 

the Children. To the extent one parent has possession of any such 

records or information, that parent shall be required to share the 

same, or copies thereof[,] with the other parent within such 

reasonable time as to make the records and information of 

reasonable use to the other parent. 

With regard to any emergency decisions which must be made, the 

parent having physical custody of the Child at the time of the 
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emergency shall be permitted to make any immediate decisions 

necessitated thereby. However, the parent shall inform the other 

of the emergency and consult with her or him as soon as possible.

2. Physical Custody: The physical custody schedule will be 

amended as follows:

Father shall have primary physical custody of the children subject 

to the following provisions:

a. Mother shall have supervised visitation with the children to be 

fully supervised by ABC in Carlisle. Visitation shall be no less than 

four hours every other week unless there is a written 

recommendation from a therapeutic reunification counselor to 

increase or decrease Mother’s visitation. Visitation at ABC will be 

at Mother’s expense.

b. Mother is directed to immediately relinquish custody of the 

children to Father by packing up their belongings in her household 

needed for their day-to-day care and taking the children to the 

home of Father and dropping them off into Father’s care and 

custody. For each full day that the children are not in 

Father’s physical custody, Mother shall pay a fine of 

$20.00/day to Father. 

c. If primary physical custody is established with Father and the 

other provisions of this order are complied with, either party may 

file a motion for status conference in order to modify the physical 

custody schedule.

Order, 9/30/22, at 1-2 (unnumbered; some emphasis added). 

Based on this order, Mother says the trial court was limited to 

sanctioning her $20.00/day, and could not imprison her. We disagree. 

Initially, Section 5323(g) of the Child Custody Act specifically permits

imprisonment as a punishment for contempt:

(g) Contempt for noncompliance with any custody order.--

(1) A party who willfully fails to comply with any custody 

order may, as prescribed by general rule, be adjudged in 

contempt. Contempt shall be punishable by any one or 

more of the following:
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(i) Imprisonment for a period of not more than six 

months.

(ii) A fine of not more than $500.

(iii) Probation for a period of not more than six 

months.

(iv) An order for nonrenewal, suspension or denial of 

operating privilege under section 4355 (relating to 

denial or suspension of licenses).

(v) Counsel fees and costs.

(2) An order committing an individual to jail under this 

section shall specify the condition which, when fulfilled, will 

result in the release of that individual.

23 Pa.C.S. § 5323(g).6 

Moreover, the $20.00/day fine mentioned in the order is listed in the 

“Physical Custody” section of the order and applies for each full day the 

children are not in Father’s physical custody. The $20.00/day fine does not 

address Mother’s usurpation of Father’s legal custody or her seeing the 

children unsupervised, both of which the trial court considered when finding 

Mother in contempt. Indeed, Father presented evidence at the February 3, 

2023 contempt hearing that Mother took J.K. out of school for an orthodontist 

appointment, despite not having legal custody of her and only supervised 

visitation. N.T., 2/3/23, at 6-7, 40, 53, 65. The trial court also deemed 

incredible Mother’s testimony that she has seldomly seen the children since 

September 30, 2022, and that the children were living in Mother’s house with 

____________________________________________

6 As the trial court astutely observed, the $20.00/day fine set forth in the 

September 30, 2022 order automatically accrues for each day the children are 

not in Father’s custody, and does not require a finding of contempt in order to 

be imposed. TCO at 7. 
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Mother’s sister, while Mother lived in her sister’s house with her sister’s 

children. See TCO at 3. As such, the trial court’s finding of contempt goes 

beyond the fact that Father has not had physical custody of the children. We

therefore reject Mother’s argument that the trial court could only fine her 

$20/day, and could not imprison her.7

Order affirmed.

Date: 10/3/2023

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7 We observe that, although Mother contended below that she could not get 

the children to obey the September 30, 2022 order, she does not advance 

that claim on appeal. See Pa.R.A.P. 2116(a) (“No question will be considered 

unless it is stated in the statement of questions involved or is fairly suggested 

thereby.”).