J-A11005-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.J.U., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

A.M.U.,

Appellee No. 2046 MDA 2016

Appeal from the Order Entered November 14, 2016

In the Court of Common Pleas of York County

Civil Division at No(s): 2009-FC-1798-03

BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED JUNE 30, 2017

Appellant, E.J.U. (“Father”), and Appellee, A.M.U. (“Mother”), are the 

parents of a daughter, A.U. (“Child”). On October 5, 2015, Father and 

Mother entered into a Stipulated Order for Custody of Child. Presently, 

Father appeals from the order entered on November 14, 2016, that held him 

in contempt for fourteen separate violations of that child custody order. 

After careful review, we affirm in part and remand for clarification.

The trial court set forth the background of this matter as follows:

The Court found Father to be in contempt of the Court’s 

Order of October 5, 2015, for willfully failing to comply with the 

Order fourteen times. The first contempt was failure to notify of 

a vacation pursuant to the [“]out of York County[”] vacation 

provision in the Order. The second, third, and fourth contempt[s] 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
J-A11005-17

- 2 -

were for three separate instances of failing to comply with the 

[“]extracurricular activities[”] provision of the Order. The fifth 

through fourteenth contempt[s] were for ten separate instances 

of violating the disparaging remarks provision of the Order. The 

Court fined Father the maximum amount permitted, $500 for 

each finding of contempt; a total of $7,000 for fourteen separate 

instances of contempt to encourage Father’s future compliance 

with the Court’s Order. The Court also ordered Father to pay 

Mother’s attorney’s fees and compensate Mother for her 

expenses arising from Father’s contempt.

Trial Court Opinion, 1/10/17, at 2.1

On December 12, 2016, Father filed a timely notice of appeal, and he 

filed his statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i) two days later on December 14, 2016.2 The trial court issued 

its Rule 1925(a) opinion on January 10, 2017.

On appeal, Father raises the following issues:

____________________________________________

1

In addition to the fine, the trial court also ordered Father to pay Mother’s 

attorney’s fees in the amount of $1,923.75, and $60.00 in costs Mother 

incurred taking Child to her riding class when Father refused. The court 

imposed a condition that if Father failed to pay these sums within sixty days, 

he would be committed to the York County Prison for thirty days. Order 

11/14/16, at 2-3. These payments were stayed pending the outcome of the 

appeal by an order of the trial court granting Father’s application for 

supersedeas. Order, 1/10/17. 

 

2 As noted, Father did not file a concise statement of errors complained of on 

appeal concurrently with his notice of appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i) and (b). However, because Mother does not claim prejudice 

as a result of Father’s procedural violation, we will not quash or dismiss his 

appeal on this basis. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009) 

(holding that the appellant’s failure to concurrently file the Rule 1925(b) 

statement with the notice of appeal did not warrant quashing or dismissing 

the appeal, as no court order had been violated, and there was no prejudice 

to any party).
J-A11005-17

- 3 -

I. Whether the trial court abused its discretion when it found 

Father willfully violated a custody order for failure to follow 

the notice of vacation outside of York County provision and 

the extracurricular activities provision?

II. Whether the trial court committed an error of law when it 

fined Father $7,000.00 and imposed incarceration upon 

Father without a purge condition upon a finding that Father 

was in contempt of a custody oder [sic]?

Father’s Brief at 4.3

When considering an appeal from an order holding a party in contempt 

for failure to comply with a court order, we will reverse only upon a showing 

that the trial court abused its discretion. Harcar v. Harcar, 982 A.2d 1230, 

1234 (Pa. Super. 2009). Additionally: 

Each court is the exclusive judge of contempts against its 

process. The contempt power is essential to the preservation of 

the court’s authority and prevents the administration of justice 

from falling into disrepute. When reviewing an appeal from a 

contempt order, the appellate court must place great reliance 

upon the discretion of the trial judge.

Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super. 2002). To 

sustain a finding of civil contempt, the complainant must prove: (1) that the 

contemnor had notice of the specific order or decree which he 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. Stahl v. 

Redcay, 897 A.2d 478, 489 (Pa. Super. 2006). 

____________________________________________

3

For purposes of our discussion, we have renumbered Father’s issues on 

appeal.
J-A11005-17

- 4 -

Here, Father is challenging the trial court’s findings only with respect 

to taking Child out of York County to Maine and failing to transport Child to 

her horseback riding classes. Father’s Brief at 12-13. After review, we 

conclude that this argument is meritless because the record confirms 

Father’s contumacious conduct. N.T., 11/10/16, at 11-21; Mother’s Exhibits 

6, 11, 12. The exhibits illustrate the vitriol with which Father expresses 

himself to Mother and demonstrates his knowledge of the agreement, the 

volition of his actions, and his wrongful intent.4 Father’s text messages 

memorialized his refusal to take Child to her horseback riding classes, and a 

text message from Child to Mother reveals that Mother was informed by 

Child, not Father, of the trip to Maine on the night before their departure. 

Mother’s Exhibits 6, 11, 12. The trial court addressed this issue as follows:

At the November 10, 2016 contempt hearing, the Mother 

established by a preponderance of the evidence that Father was 

in contempt for violating the notice of vacation outside of York 

County provision in the Order. Page 5 of the Order provides that 

if either parent is going to take the child out of York County on 

vacation, they will advise the other parent where they will be 

going, where they will be staying, and an emergency telephone 

____________________________________________

4 The text messages reflect that Mother reminded Father of the custody 

order, and Father responded by stating that the riding classes were a “three 

hour excursion” for him and he had “no plans to take [Child] to her riding 

classes during [his] custody time[.]” Mother’s Exhibit 6. Father then 

resorted to taunting Mother to “schedule a hearing” calling her a “piece of 

shit,” a “prick bitch,” a “fucking loser,” and telling Mother to “go fuck 

yourself.” Id. Father continued to use profanity and disparaging remarks in 

his text messages to Mother in violation of the custody order and despite 

Mother making Father aware that she shared her phone with Child. N.T., 

11/10/16, at 23. 
J-A11005-17

- 5 -

number where they can be reached. The Court found that Father 

failed to discuss with Mother a trip he made to Maine with the 

child, counter to the Court’s Order. Further, the Court 

determined Father’s actions to be volitional and with wrongful 

intent to not notify Mother of the trip to cause her distress. The 

Court therefore, found Father in contempt of the notice of 

vacation provision and fined him $500 to encourage Father to 

follow the Court’s Order in the future.

Second, the Court found Father in contempt of the 

extracurricular activities provision of the Order. Pages 8 and 9 of 

the Order provides that the parents must honor and participate 

in the activities the child wishes to engage in, be supportive of 

the child’s activities, and transport the child to and from such 

activities. It was established at the contempt hearing that the 

child’s sole extracurricular activity that she chooses to 

participate in is horseback riding. The child has engaged in this 

activity for six years. The Mother established at the contempt 

hearing that she provided Father with the child’s 2016 horseback 

riding schedule at the beginning of the 2016 year. It was further 

established that on three separate occasions, Father failed to 

take his daughter to her scheduled horseback riding lessons 

during his periods of custody. The Court was convinced, beyond 

a preponderance of the evidence that Father failed to follow the 

Court’s Order. Further, the Court found that Father’s attitude 

towards his daughter participating in this activity demonstrated a 

volitional and wrongful intent of the Father to not have his 

daughter participate in her extracurricular activity. The Court 

found Father in contempt for each time he failed to take his 

daughter to her scheduled extracurricular activity. Therefore, the 

Court fined Father the maximum allowable amount of $500 for 

each contempt as a means to encourage Father to carry out the 

Court’s Order and take the child to her extracurricular activities.

Trial Court Opinion, 1/10/17, at 4-6. We agree with the trial court and 

discern no abuse of discretion in the trial court’s conclusion that Father was 

in contempt of the custody order on these occasions. Accordingly, no relief 

is due.
J-A11005-17

- 6 -

In his second issue, Father complains that the trial court committed an 

error of law when it fined him $7,000.00, $500.00 for each of the fourteen 

acts of contempt, and included a term of incarceration if Father did not pay 

the fine within sixty days. We conclude that there was no error.

The statute that enumerates the available sanctions for contempt of a 

custody order is set forth below: 

(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:

(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.

23 Pa.C.S. § 5323(g)(1).

Father argues that there is no authority for the trial court fining him 

the maximum amount under 23 Pa.C.S. § 5323(g)(1)(ii) for each of his 

separate acts of contempt. See Father’s Brief at 10 (“There is nothing in the 

statute that permits a $500.00 ‘per violation’ fine.”). Thus, Father argues 
J-A11005-17

- 7 -

that the maximum amount the trial court could fine him was $500.00 and 

not $7,000.00. 

In his brief on appeal, Father has not cited any precedent supporting 

his claim, and our independent research has failed to uncover any authority 

that is directly on point. Nevertheless, we conclude that Father’s argument 

in untenable. 

In her petition for contempt, Mother alleged that Father engaged in 

numerous acts of contempt of the custody order. Petition, 7/25/16, at ¶ 6. 

As noted above, the trial court concluded that Mother proved by a 

preponderance of the evidence that Father failed to notify Mother of a 

vacation to Maine, failed on three instances to comply with the 

extracurricular-activities provision of the custody order, and violated the 

prohibition against making disparaging remarks against Mother on ten 

occasions. Trial Court Opinion, 1/10/17, at 2. In the absence of any 

authority to the contrary, we conclude that there was no error in the trial 

court fining Father for each violation of the custody order. 

Moreover, were we to accept Father’s construct, he would receive a 

volume discount on his actions. Such an interpretation would require Mother 

to file an individual petition for contempt for each contumacious act. We 

conclude that such an interpretation would create unnecessary expense for 

Mother in filing multiple petitions and cause a waste of court resources. 

Additionally, we conclude that there is nothing in the statute that prohibited 
J-A11005-17

- 8 -

Mother from alleging multiple contempts in a single petition, nor is there a 

prohibition on the trial court meting out a fine for each separate act of 

contempt. 

Finally, Father argues that the trial court erred in imposing a term of 

incarceration without a purge condition. However, Father provides no 

authority requiring a purge condition under the facts of this case. Moreover, 

while a purge condition is a traditional feature of civil contempt, when 

imposing a contempt fine for noncompliance with a custody order under 23 

Pa.C.S. § 4346,5the order imposing the fine need not specify a purge 

condition. Sutliff v. Sutliff, 522 A.2d 80, 83 (Pa. Super. 1987). For these 

reasons, we conclude that no relief is due.

Finally, we are constrained to note that the trial court’s order does not 

specify to whom Father is to pay the fine. Accordingly, we remand this 

matter to the trial court for the limited purpose of designating the payee of 

the fine. See Brocker v. Brocker, 241 A.2d 336, 339 (Pa. 1968) (stating 

that the remedial punishment of a fine may be payable to a government 

body or an aggrieved litigant).

For the reasons set forth above, we affirm the trial court’s November 

14, 2016 order in part, and remand for the trial court to designate to whom 

the fine is owed.

____________________________________________

5 Effective January 24, 2011, P.L. 1106, No. 112, § 2 repealed 23 Pa.C.S. § 

4346 and replaced it with 23 Pa.C.S. § 5323(g).
J-A11005-17

- 9 -

Order affirmed in part. Case remanded, in part, for clarification. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/30/2017