J-A01032-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEANETTE DELEON AND MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID J. SPILLANE

Appellant No. 734 EDA 2015

Appeal from the Judgment of Sentence January 20, 2015

In the Court of Common Pleas of Northampton County

Civil Division at No(s): C0048PF2014000602

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED MARCH 02, 2016

David J. Spillane (Father) appeals from his judgment of sentence, 

entered in the Court of Common Pleas of Northampton County, after being 

convicted of indirect criminal contempt (ICC)1for violating a temporary 

protection from abuse (PFA)2order. After careful review, we affirm. 

Father and Appellee, Jeanette DeLeon (Mother), were married in July 

2013; they have one minor child, L.S. (Child) (d/b 6/13), born of the 

marriage. In December 2013, the parties separated. Mother and Child 

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1 See 23 Pa.C.S. § 6114(a) (“Where the police, sheriff or the plaintiff have 

filed charges of indirect criminal contempt against a defendant for violation 

of a protection order issued under this chapter . . . or a court-approved 

consent agreement, the court may hold the defendant in indirect criminal 

contempt and punish the defendant in accordance with law.”).

2 See 23 Pa.C.S. § 6102, et seq. 
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moved into Mother’s parents’ residence. On January 31, 2014, Mother filed 

a divorce complaint, including a count for custody of Child. On February 18, 

2014, the parties entered into a custody agreement, that was adopted as an 

order of court. Mother retained primary physical custody of Child, Father 

had partial physical custody and the parties shared legal custody.

On August 25, 2014, the trial court issued a temporary PFA order 

against Father after Mother accused Father of physically assaulting her 

during a custody exchange. The PFA order prohibited Father from 

“abus[ing], harass[ing,] stalk[ing,] or threaten[ing]” Mother or Child and 

“evicted and excluded [Father from Mother’s residence . . . or any other . . . 

residence where Mother or [Child may live].” Temporary PFA Order, 

8/25/14, at ¶ 1. The PFA order forbade Father from contacting Mother, 

Child and any other protected person “by oral, nonverbal, written or 

electronic means[.]” Id. at ¶ 3. Finally, the PFA order also stated that 

“[e]xcept for such contact with the minor child[] as may be permitted under 

paragraph 5 of this order [relating to custody],3[Father] is prohibited from 

having ANY CONTACT with Plaintiff [or Child] . . . directly or indirectly, at 

any location[.]” Id. (emphasis in original).4

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3

Paragraph 5 of the PFA references the parties’ child custody order. That 

custody order states that it supersedes any prior order relating to child 

custody. Id. at ¶ 5. 

4 The PFA clearly states that “[Father] shall have no partial physical 

custody/visitation rights.” Id. at ¶ 5.
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On September 3, 2014, the trial court extended the temporary PFA 

order until February 17, 2015, and modified it by adding the following 

terms:

1. The parties shall adhere to the current order regarding custody of the 

parties’ minor child [which included Father resuming periods of partial 

physical custody;]

2. The exchange point for transfers of physical custody shall be at the 

Skippack Police [B]arracks[;]

3. Should Defendant fail to return the minor child to Plaintiff’s care at the 

end of his periods of partial custody, he agrees to forego all future 

visitation, until such time as the PFA is resolved. He also agrees to 

pay [a] minimum of $500 to Plaintiff’s attorney for fees should he fail 

to return the minor child and Plaintiff seeks contempt for said failure[; 

and]

4. Only the parties should be present at the exchange of custody. No 

third party or relatives.

Modified Temporary PFA Order, 9/3/14.5

Subsequently, on October 28, 2014, the parties entered into a final 

custody agreement, which was made an order of court, where Mother and 

Father had shared legal custody, Mother retained primary physical custody, 

and Father had partial physical custody (every other weekend from 6 p.m. 

Friday until 6 p.m. Sunday). Custody Order, 10/30/14, at ¶ 2. When 

Mother was receiving custody, she picked the Child up at the Skippack Police 

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5 On September 24, 2014, after Mother filed another PFA petition against 

Father, the court vacated the parties’ September 3, 2014 custody order. 

N.T. PFA Hearing, 9/24/14, at 8. Mother alleged that Father pushed, 

grabbed and punched her arm when she was taking custody of their child. 

Id. at 14-15. 
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Barracks; when Father received custody, he picked the Child up at the 

Hellertown Police Station. Id. With regard to holidays the order states, in 

relevant part:

3. Holidays. Holidays shall be shared as the parties may agree. 

If the parties cannot agree, they shall observe the following 

holiday schedule, which shall prevail over all other periods of 

physical custody.

* * *

e. New Year’s Eve/New Year’s Morning. From 12:00 

p.m. on New Year’s Eve until 12:00 p.m. on New Year’s 

Day. In even-numbered years, Mother shall have custody. 

In odd-numbered years, Father shall have custody.

Id. at ¶ 2-3. Finally, the custody order stated “the custody provisions of this 

order supersede any and all prior orders, including any temporary or final 

Protection from Abuse (‘PFA’) Orders.” Id. at ¶ 10 (emphasis added).

On January 2, 2015, Mother filed the instant indirect criminal contempt 

complaint6alleging that Father violated the temporary PFA order by sending 

her approximately 10 text messages and appearing at her residence7on 

New Year’s Day to regain custody of their daughter. After a contempt 

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6 Mother filed two other indirect criminal complaints against Father on 

October 15, 2014 and October 20, 2014. On October 17, 2014, the court 

found father in contempt for violating the PFA by going to Mother’s residence 

and speaking with her brother (who is also covered under the PFA). Again, 

on October 23, 2014, Father was found in contempt for failing to return Child 

to Mother.

7 At the time, Mother was living with her parents.
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hearing, the trial judge found Father in contempt and sentenced him to 

serve 7 days in prison and pay a $500 fine.8 This timely appeal follows.

On appeal, Father presents one issue for our review: Whether the trial 

court abused its discretion in finding Appellant in indirect criminal contempt 

of a PFA order when Appellant acted at all times in compliance with a 

superseding custody order.

Where a PFA order is involved, “an [indirect criminal contempt] charge 

is designed to seek punishment for violation of the protective order." 

Commonwealth v. Jackson, 10 A.3d 341, 346 (Pa. Super. 2010) (citation 

omitted). To establish indirect criminal contempt, the Commonwealth must 

prove: 1) the order was sufficiently definite, clear, and specific to the

contemnor as to leave no doubt of the conduct prohibited; 2) the contemnor 

had notice of the order; 3) the act constituting the violation must have been 

volitional; and 4) the contemnor must have acted with wrongful intent. 

Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012) (citation 

omitted).

[W]hen reviewing a contempt conviction, much reliance is given 

to the discretion of the trial judge. Accordingly, [the appellate 

court is] confined to a determination of whether the facts 

support the trial court decision. Williams v. Williams, [] 681 

A.2d 181, 183 (Pa. Super. 1996)[.] We will reverse a trial 

____________________________________________

8 The court also ordered that the temporary PFA order remain in full force 

and effect.
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court’s determination only when there has been a plain abuse of 

discretion. 

Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa. Super. 2002) (some 

citations omitted).

Instantly, Father contends that the portion of the parties’ custody 

order regarding holidays with their daughter is “poorly written and 

ambiguous . . . and makes it unclear if [he] had custody of his daughter for 

New Year’s Eve or New Year’s Day.” Appellant’s Brief, at 9. He claims that 

all of his actions were motivated by his desire to protect his custody rights 

and not “with the wrongful intent” necessary to violate a PFA. Finally, he 

asserts that the PFA was also unclear “insofar as it was superseded by the 

Custody Order.” Id. at 10.

Initially, we note that the language in the parties’ final custody order 

clearly states that a parent assumes custody of Child from 12:00 p.m. on 

New Year’s Eve until 12:00 p.m. on New Year’s Day. However, even if 

Father found this language ambiguous, the PFA clearly indicates that he was 

excluded from Mother’s residence. Moreover, Father was prohibited from 

having any contact with Mother or Child except for contact necessary for him 

to exercise his partial custody rights. The custody order is consistent with 

the PFA’s residential restriction insofar as it states that when Father receives 

custody, he shall pick up the Child at the Hellertown Police Department. 

With regard to his intent to violate the PFA, Father testified that 

despite the parties’ agreement that the drop off location for custody 

exchanges is to occur only at Hellertown Police Station or the Skippack State 
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Police Station, he showed up at Mother’s residence in contravention of the 

custody arrangement. N.T. Indirect Criminal Contempt Hearing, 1/20/15, at 

41. Moreover, Father admitted that he had been told on numerous 

occasions by Mother, Mother’s parents, as well as the police not to come to 

Mother’s house. Id. Under such circumstances, we find that the facts 

support the trial court’s determination that Father had the wrongful intent to 

violate the PFA. Kolansky, supra. See Commonwealth v. Brumbaugh, 

932 A.2d 108, 111 (Pa. Super. 2007) (“wrongful intent can be imputed by 

virtue of the substantial certainty that [one’s actions will be] in violation of 

the PFA Order.”); Commonwealth v. Haigh, 874 A.2d 1174 (Pa. Super. 

2005) (judges should use common sense and consider context and 

surrounding factors in making determination as to whether violation of a PFA 

is truly intentional). 

Finally, we find no merit to Father’s claim that the custody order 

superseded the PFA order. In Dye for McCoy v. McCoy, 621 A.2d 144, 

(Pa. Super. 1993), our Court stated

[S]ection 6108(a)(4) [of the Protection from Abuse Act] 

precludes a custody award, pre-existing or following the PFA 

Order, from nullifying the PFA Order as its purpose is to assure 

the safety of a child or children above and beyond any other 

Orders or relationships involving the children. To hold otherwise 

would have the effect of emasculating the central and 

extraordinary feature of the PFA which is to prospectively control 

and prevent domestic violence[.]” 

Id. at 145. Accordingly, while certain provisions relating to custody of Child 

may take precedence over portions of the parties’ PFA order, it by no means 
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gave Father permission to go to Mother’s residence in complete derogation 

of the PFA order and its purpose of protecting Mother and Child.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/2/2016