245 A.3d 1071
Pa. Super. Ct.2020Background
- Mother (K.L.C.S.) and Father (D.W.S.) share legal and physical custody of two minor children pursuant to a June 25, 2018 custody order entered after Court Conciliation and Evaluation Services (CCES) involvement.
- The parties signed CCES Consent & Waiver forms (2015 and 2018) expressly consenting to admission of CCES reports into evidence and waiving the right to subpoena or cross‑examine the CCES evaluator; they retained the right to a full hearing and to call other experts.
- Father filed a petition for contempt (Dec. 2018) alleging Mother interfered with his custodial rights (including denial of right‑of‑first‑refusal and alienating conduct) and sought sanctions, co‑parenting counseling at Mother’s expense, and counsel fees.
- At the March 26, 2019 hearing the trial court admitted the CCES reports over Mother’s authentication/ hearsay objection based on her prior waiver; Mother was found in contempt by order dated April 22, 2019 and ordered, inter alia, to complete in‑person co‑parenting education and to pay for subsequent joint counseling.
- Mother timely appealed claiming due process violations (inadmissible hearsay/opinion in CCES reports per In re A.J.R.‑H.; denial of opportunity for children to testify). Superior Court affirmed the contempt order, upheld admission of the CCES reports, denied the claim that children had to testify, and found Mother’s appeal frivolous, remanding for calculation of Father’s counsel fees and costs.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Admissibility of CCES reports (due process/hearsay) | CCES reports contain opinion hearsay and multilevel hearsay not admissible as business records under In re A.J.R.‑H.; Mother lacked opportunity to confront author | Parties had knowingly signed CCES Consent & Waiver permitting admission without evaluator testimony; admission permitted under that waiver | Court: Waiver valid; admission not an abuse of discretion; In re A.J.R.‑H. not controlling here |
| Children testifying / right to in‑court interview | Children’s testimony was necessary to prove alienation; denying in‑court testimony violated due process | Trial court has discretion under Pa.R.C.P. 1915.11; no offer of proof shown and child testimony can be excluded to protect child | Court: No abuse of discretion in declining in‑court child testimony; rules permit optional interviews |
| Contempt finding (elements: notice, volitional act, wrongful intent) | Mother contends order/supporting evidence insufficient | Father showed Mother violated custody order (denied right of first refusal, undermined parenting) | Court: Credible evidence supports contempt; trial court’s credibility determinations affirmed |
| Counsel fees / frivolous appeal | Appeal not frivolous; cannot be sanctioned without clear lack of basis | Mother’s conduct and appeal lack basis; pattern of obdurate behavior; award justified under Pa.R.A.P. 2744 | Court: Appeal frivolous; remand to trial court to determine and impose Father’s counsel fees and costs |
Key Cases Cited
- In re A.J.R.‑H., 188 A.3d 1157 (Pa. 2018) (addresses limits on admitting expert opinion as business records without opportunity for confrontation)
- T.D. v. E.D., 194 A.3d 1119 (Pa. Super. 2018) (trial court discretion on interviewing/allowing child testimony in custody matters)
- Harcar v. Harcar, 982 A.2d 1230 (Pa. Super. 2009) (standard of review and deference for contempt determinations)
- P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super. 2012) (elements required to sustain civil contempt)
- Commonwealth v. Reichle, 589 A.2d 1140 (Pa. Super. 1991) (authority to award counsel fees for frivolous appeals)
- Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 2007) (appellate court’s duty to independently assess frivolity of appeal)