The recent Pennsylvania Superior Court case of Hopkins v. Byes reiterates that it may be appropriate for a trial court to order attorney fees against a party found in contempt for failing to follow a child custody order. Hopkins v. Byes is a custody case that arose in Erie County, Pa. The relevant facts of the case are as follows: Sonya Byes and John Hopkins Jr. are the parents of a 10-year-old child. In January 2006, the parties entered into a consent custody agreement giving Byes primary physical custody of the child and Hopkins partial physical custody (referred to as "visitation" in the opinion). In the parties' agreement, it is stated that Hopkins' Thanksgiving visitation was to be at "times by mutual agreement" and agreed upon visitation time with the child on Christmas and child's birthday, which was just days after Christmas.

On Dec. 15, 2006, Hopkins filed a petition for contempt alleging that Byes refused to allow the child "to go with him on Thanksgiving Day." The opinion states that: "Father filed his Contempt Petition in an effort to make sure Mother did allow the agreed-upon Christmas Day visitation." Hopkins averred in his petition that he incurred $500 in legal fees in pursuing his petition.

A hearing was held on Hopkins' petition Jan. 29, 2007. Byes argued that Hopkins telephoned her to make arrangements for his Thanksgiving visitation, indicating that he desired to be with the child from 4 p.m. to 9 p.m. Byes testified that she asked that Hopkins begin his visitation session at 6 p.m. rather than 4 p.m. because her family was celebrating her birthday with the child at that time. Byes further testified that Hopkins refused to change the start time of the visitation and, therefore, chose not to exercise his visitation on Thanksgiving Day.

Byes stated that Hopkins also did not exercise any of his custody time from Thanksgiving until the time of the hearing on Jan. 29, 2007. When questioned further about this by the court, Byes stated: "no show, no call, no gifts, nothing. [Child's] birthday is December 28th."

At the hearing, Hopkins testified that he spoke with Byes regarding the pick-up and drop-off times for the Thanksgiving holiday and did not agree with delaying his pick-up time to 6 p.m. instead of his desired 4 p.m. start of his visitation session. He stated that the parties angrily hung up on each other. Hopkins then indicated that he did not call Byes again until "the Saturday after Thanksgiving" at about 10:30 a.m. in anticipation of picking up the child for his usual Saturday visit. When Byes refused to allow the child to sleep over that Saturday night, Hopkins chose not to exercise his 11 a.m. to 9 p.m. court-ordered Saturday visitation time. With regard to Hopkins' Christmas visitation, Hopkins testified that he telephoned Byes repeatedly from his cell phone and landlines, but Byes never answered the phone. Hopkins admitted that he did not telephone the child on the child's birthday because he was working.

Though the parties' agreement did not provide for specific times for Hopkins' partial custody/visitation, based on the opinion, the prior practice of the parties was for Hopkins to have custodial time with the child on Thanksgiving from 4 p.m. to 9 p.m., and the parties' stipulation did not provide for any custodial time of the child during the parents' birthdays.

At the conclusion of the contempt hearing, "the court stated that it was reserving its ruling, and directed each party to submit his or her cell and home phone records," the opinion noted. Hopkins submitted his cell phone records, but Byes did not, indicating that she was unable to produce same because of issues with the Verizon Telephone Co. The trial court, in its order, indicated that it received the telephone records from Hopkins and not Byes, and the records support the position that Hopkins made multiple attempts of calling Byes to have custody "with little or no success." The court granted Hopkins' petition for contempt and found that "Byes was intentionally interfering with the custody of the child," and awarded $500 in attorney fees to be paid within 90 days of the court's order. The court entered its order July 24, 2007.

At the trial court level, the crux of Byes' argument was that Hopkins chose not to exercise his custodial time. Hopkins' counter-argument was "because of Mother's failure to cooperate, he 'gave up' trying to see his son" on his birthday and Christmas.

Family law practitioners are often faced with this issue. It appears that Byes believed that her actions were justified because Hopkins chose not to exercise all of his custodial time. However, that is not justification for withholding time from a parent who does not regularly exercise his or her custodial periods. In citing the trial court, the Superior Court stated: "[T]he court has no duty to compel Father to exercise his custodial time with [the child]. But, Mother has a duty to follow the Custody Order and encourage [the child] to spend time with Father. Father's decision not to follow through with visitation on or around Christmas and [the child's] birthday, while insensitive, is not a defense to Mother's actions." Therefore, Byes' actions were in violation of the court's order.

Byes raised two arguments in her timely appeal. First, she argued that the evidence presented does not support the trial court's finding of contempt. Second, she argued that the trial court erred by not considering whether she was able to pay the $500 assessed in attorney fees. The Superior Court stated: "[I]n considering an appeal from the order of holding a party in contempt for failure to comply with a court order, our scope of review is narrow: we will reverse only upon a showing the court abused its discretion." The Superior Court further stated: "[T]he 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 order and the complaining party must satisfy that burden by a preponderance of the evidence." In affirming the trial court, the Superior Court held: "[W]e agree that Father proved, by a preponderance of the evidence that Mother was in contempt for violating the terms of their custody and visitation order. Mother was given the opportunity to contradict Father's allegation of contempt, but the record establishes she failed to present sufficient evidence to do so. Accordingly, we affirm the order finding appellant mother in contempt." The Superior Court also stated: "[A]ttorney's fees may be assessed as a sanction for the contemnor's refusal to comply with a court order, causing the innocent party to incur fees in an effort to obtain what was rightfully his[/hers]."

In addressing Byes' second argument on appeal, regarding whether the trial court erred in not first assessing Byes' ability to pay the attorney fees before ordering them, the Superior Court stated: "[W]e have found no controlling case law relevant to a finding of contempt based on a party's failure to comply with a visitation or custody Order that mandates a determination of the contemnor's ability to pay, prior to the imposition of a sanction in the form of attorney's fees. In fact, we direct the parties' attention to a 2007 Superior Court case involving custody and an allegation of contempt, Holler v. Smith , wherein this Court upheld an award of counsel fees as a sanction for dilatory, vexatious and obdurate behavior, without a discussion relative to the contemnor's ability to pay." Therefore, the Superior Court found that the trial court did not abuse its discretion or err in ordering $500 in attorney fees as a sanction, without first assessing Byes' ability to pay same.

This case is a reminder to the family law practitioner that parties must follow custody schedules provided in custody orders, regardless of whether the other party has been waiving his or her custodial periods. Further, this case reiterates that counsel fees may be an appropriate sanction when a party is in contempt of a custody order.

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MICHAEL E. BERTIN is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and a member of the executive committee of the family law section of the Philadelphia Bar Association.

This article is reprinted with permission from the October 14, 2008 issue of The Legal Intelligencer © 2008 NLP IP Company

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