J-S58031-15

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.N.D. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

J.A.S.

Appellee No. 844 MDA 2015

Appeal from the Order Entered April 17, 2015

In the Court of Common Pleas of York County

Civil Division at No(s): 2013-FC-000769-03

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 06, 2015

Appellant, B.N.D. (“Mother”), appeals from the order entered in the 

York County Court of Common Pleas, finding Mother in contempt of the 

court’s May 12, 2014 custody order and imposing sanctions in the form of 

attorney fees. We affirm. 

The relevant facts and procedural history of this case are as follows. 

Mother and J.A.S. (“Father”) are the biological parents of M.S. and J.S. 

Mother and Father separated in the spring of 2013. Following separation, 

Mother stayed permanently in Ohio with the children, while Father returned 

to Pennsylvania. On May 3, 2013, the York County Court of Common Pleas 

entered an order granting Mother and Father joint legal custody of the 

children and awarding Mother primary physical custody of the children in 

Ohio. Father filed a petition for modification of the custody order on 
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September 10, 2013. After a two-day custody trial, the York County court 

entered a new custody order on May 12, 2014, which, inter alia, granted 

Father physical custody of the children for the February 13, 2015 weekend. 

In January of 2015, M.S. made allegations of abuse against Father to 

her therapist in Ohio. The therapist reported M.S.’s abuse allegations to 

Fairfield County Child Protective Services (“Fairfield County CPS”) in Ohio, 

who then informed York County Children, Youth and Families (“York County 

CYF”) of the allegations on January 28, 2015. York County CYF conducted 

an investigation into the abuse allegations in Pennsylvania, which included 

an interview with Father. On February 11, 2015, Mother informed Father 

that J.S.’ doctor had advised that J.S. not travel that weekend due to an ear 

infection. Father requested to exercise his custody rights as to M.S. for the 

February 13, 2015 weekend; however, Mother refused Father’s request 

despite Mother learning on 2/12/15, from a York County CYF caseworker 

that M.S.’ abuse allegations were unfounded. 

On March 13, 2015, Mother filed a motion for an emergency ex parte

order in Ohio, asking the Ohio court to suspend Father’s custody rights and 

grant Mother sole custody of the children based on M.S.’ abuse allegations. 

On March 18, 2015, Father filed a petition in York County, asking the court 

to hold Mother in contempt of the May 12, 2014 custody order, for not 

allowing him to have custody of M.S. during the February 13, 2015 

weekend. On March 24, 2015, following a hearing, the Ohio court entered 

an emergency ex parte order, temporarily suspending Father’s custody 
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rights until April 23, 2015. With respect to the contempt action in York 

County, Mother filed a motion for change of venue based on forum non 

conveniens on April 6, 2015. On April 16, 2015, the York County court 

denied Mother’s motion for change of venue, after a hearing. On April 17, 

2015, the York County court held a hearing on Father’s contempt petition, 

found Mother in contempt of the court’s May 12, 2014 custody order, and 

ordered Mother to pay Father $850.00 for attorney fees incurred. Mother 

filed a timely notice of appeal and Rule 1925(b) statement of errors 

complained of on appeal on May 13, 2015.1 

Mother raises the following issues for our review: 

WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW 

AND/OR ABUSED ITS DISCRETION IN DENYING 

APPELLANT’S MOTION FOR FORUM NON CONVENIENS AND 

CHANGE OF VENUE WITH RESPECT TO APPELLEE’S 

MOTION FOR CONTEMPT CONTRARY TO 23 PA.C.S.A. § 

5427? 

WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW 

AND/OR ABUSED ITS DISCRETION IN FINDING APPELLANT 

____________________________________________

1 Civil contempt orders imposing sanctions for non-compliance with a prior 

court order generally constitute final, appealable orders. Stahl v. Redcay, 

897 A.2d 478, 487 (Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d 

747 (2007) (citing Lachat v. Hinchliffe, 769 A.2d 481, 488 (Pa.Super. 

2001) (stating civil contempt paired with sanctions constitutes final, 

appealable order). “Ordinarily, an adjudication of contempt, with a directive 

to specifically perform, without sanctions, is interlocutory and not 

appealable.” Richardson v. Richardson, 774 A.2d 1267, 1268 n.2 

(Pa.Super. 2001). The imposition of attorney fees related to contempt 

proceedings constitutes a sanction for purposes of this rule of appealability. 

Rhoades v. Pryce, 874 A.2d 148, 153 (Pa.Super. 2005) (en banc), appeal 

denied, 587 Pa. 724, 899 A.2d 1124 (2006).
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IN CONTEMPT OF THE CUSTODY ORDER AFTER TRIAL 

DATED MAY 12, 2014? 

(Mother’s Brief at 4). 

Our standard of review for a civil contempt order is as follows: 

When considering an appeal from an [o]rder holding a 

party in contempt for failure to comply with a court 

[o]rder, our scope of review is narrow: we will reverse only 

upon a showing the [trial] court abused its discretion. The 

[trial] court abuses its discretion if it misapplies the law or 

exercises its discretion in a manner lacking reason. To be 

in contempt, a party must have violated a court [o]rder, 

and the complaining party must satisfy that burden by a 

preponderance of the evidence. 

Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa.Super. 2009) (internal citations 

omitted); Mrozek v. James, 780 A.2d 670, 673 (Pa.Super. 2001) (stating 

same). Additionally, this Court has stated: 

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). 

Section 5323 of the Pennsylvania Code governs punishment for 

contempt in custody actions as follows: 

§ 5323. Award of custody

* * *

(g) Contempt for noncompliance with any custody 

order.—
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(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. 

(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.A. § 5323(g). To sustain a finding of civil contempt involving a 

custody order, this Court has stated:

[T]he complainant must prove certain distinct elements by 

a preponderance of the evidence: (1) that the contemnor 

had notice of the specific order or decree which 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. 

Harcar, supra at 1235. An alleged contemnor must have the opportunity 

to explain her non-compliance with the court order, as intent is an essential 

element of contempt. Nemeth v. Nemeth, 451 A.2d 1384, 1387 

(Pa.Super. 1982). 

Our standard of review of the denial of a motion for change of venue 
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based on forum non conveniens is as follows: 

A court’s decision to exercise or decline jurisdiction is 

subject to an abuse of discretion standard of review and 

will not be disturbed absent an abuse of that discretion. 

Under Pennsylvania law, an abuse of discretion occurs 

when the court has overridden or misapplied the law, when 

its judgment is manifestly unreasonable, or when there is 

insufficient evidence of record to support the court’s 

findings. An abuse of discretion requires clear and 

convincing evidence that the trial court misapplied the law 

or failed to follow proper legal procedures. 

M.E.V. v. R.D.V., 57 A.3d 126, 129 (Pa.Super. 2012). Section 5427 of the 

Pennsylvania Code sets for the law applicable to an inconvenient forum 

finding as follows: 

§ 5427. Inconvenient forum

(a) General rule.—A court of this Commonwealth which 

has jurisdiction under this chapter to make a child custody 

determination may decline to exercise its jurisdiction at 

any time if it determines that it is an inconvenient forum 

under the circumstances and that a court of another state 

is a more appropriate forum. The issue of inconvenient 

forum may be raised upon motion of a party, the court’s 

own motion or request of another court. 

(b) Factors.—Before determining whether it is an 

inconvenient forum, a court of this Commonwealth shall 

consider whether it is appropriate for a court of another 

state to exercise jurisdiction. For this purpose, the court 

shall allow the parties to submit information and shall 

consider all relevant factors, including: 

(1) whether domestic violence has occurred and is 

likely to continue in the future and which state could 

best protect the parties and the child; 

(2) the length of time the child has resided outside 

this Commonwealth; 
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(3) the distance between the court in this 

Commonwealth and the court in the state that would 

assume jurisdiction; 

(4) the relative financial circumstances of the 

parties; 

(5) any agreement of the parties as to which state 

should assume jurisdiction; 

(6) the nature and location of the evidence to 

resolve the pending litigation, including testimony of 

the child; 

(7) the ability of the court of each state to decide 

the issue expeditiously and the procedures necessary 

to present the evidence; and 

(8) the familiarity of the court of each state with the 

facts and issues in the pending litigation. 

23 Pa.C.S.A. § 5427(a)-(b). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Gregory M. 

Snyder, we conclude Appellant’s issues on appeal merit no relief. The trial 

court opinion comprehensively discusses and properly disposes of those 

questions. (See Trial Court Opinion, filed June 12, 2015, at 2-6) (finding: 

(1) court considered all eight factors contained in Section 5427 of 

Pennsylvania Code to determine whether York County was inconvenient 

forum, noting: with respect to first factor, alleged abuse of M.S. occurred in 

York County and, after investigation, York County CYF determined 

allegations were unfounded; with respect to second factor, fact that children 

live with Mother in Ohio weighs slightly in favor of Mother’s request that 
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Ohio court hear contempt matter; with respect to third factor, distance 

between York County court and Ohio court, is between six and seven hours 

by car, which is not inordinately long and does not have much impact on 

where contempt matter should be decided; with respect to fourth factor, 

while Father’s financial circumstances are better than Mother’s, this has not 

inhibited Mother’s ability to participate in contempt matter as demonstrated 

by private counsel representing Mother in proceedings; with respect to fifth 

factor, Mother and Father had no agreement regarding jurisdiction or venue; 

with respect to sixth factor, Mother failed to convince court it would be 

impossible or difficult to present evidence in York County as Father agreed to 

Mother presenting evidence via telephone; with respect to seventh factor, 

contempt matters are given high priority in Pennsylvania and Mother 

presented no evidence on Ohio court’s ability to decide contempt matter 

expeditiously; and with respect to eighth factor, York County court is more 

familiar with underlying custody matter because it issued original custody 

order, and proceeding in Ohio court focused on abuse allegations, not 

custodial relationship between Mother and Father; therefore, upon 

consideration of factors contained in Section 5427 of Pennsylvania Code, 

York County was proper venue for contempt matter; (2) Father was entitled 

to partial custody of children for three-day weekend beginning on February 

13, 2015; Mother admitted she refused to allow Father to exercise his 

custody rights on those dates; Mother conceded she knew abuse allegations 
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were unfounded because of phone call from CYF caseworker on February 12, 

2015, yet she told Father he could not have custody of children; Mother 

presented no evidence to support her claim that Father and his girlfriend 

violated the May 12, 2014 custody order by blowing smoke in children’s 

faces; Father expressed to Mother that he still wanted to exercise his 

custody rights as to M.S. despite J.S.’ ear infection, but Mother refused to let 

Father do so; therefore, Mother willfully violated custody order with respect 

to M.S. during February 13, 2015 weekend). Accordingly, we affirm on the 

basis of the trial court’s opinion. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2015