Custody Contempts: Where Rights Have Few Remedies
Until the Covid pandemic throttled the judicial system the Pennsylvania Superior Court could bank on disposing of 7,500-8,000 filings a year. The vast majority of these are appeals from trial court rulings where one or both of the litigants profess that the trial courts “got it wrong.” These cases include criminal, civil, juvenile and “orphans” matters involving decedent’s estates or adoptions.
One of the changes brought about by the proliferation of information on the internet is what seems to be a vast increase in appeals by parties who don’t employ counsel. The result is a corresponding number of cases like Hamaday v. Hamaday where we read a 25 page judicial opinion which can be summarized as “The Appellant did not understand appellate procedure or the standard of review.” People aren’t troubled by that because appeals are kind of a bargain. For a touch over $500 you can file an appeal of just about any final order in support, custody or divorce. Assuming you figure out how to navigate the system, this gets you (a) a written opinion by the trial judge who you think wronged you (b) a review of your written appellate brief by three or more clerks on the court’s staff (c) an argument before three appellate judges in Philly, Pittsburgh or Harrisburg and (d) a written opinion formally addressing each of the errors outlined in your appeal. Using rough calculations, we are talking about four judges involved in disposing of your appeal, each of whom is paid roughly $100 an hour. Needless to say, your $500 appeal consumes a lot more than five judicial hours. You can thank your fellow taxpayers for their contribution to disposing of your outrage.
The Hamaday case involves appeals of both a support and custody contempt order. The support facts are kind of fun but not that “blogworthy.” Parents have two kids 10 and 12. Father worked for the IRS doing tax related work, but he was not an accountant per se. He and mom got into a custody scrap at one point and the custody evaluator’s report seems to have suggested that father’s employment was not consistent with the time he wanted to allocate to the kids. So, dad quit his IRS job and became a self-employed tax preparer. As you might suspect this did not pay as well as his IRS day job so he petitioned to reduce his support since he no longer made the money he had with the IRS. Mom is a hairdresser and as anyone who has ever had a “hairdresser” case can tell you, there is always a fight over what a hairstylist can or does actually earn. The average according to state labor stats is $18 an hour but then there are the matters of where they work and what tips they might receive.
Suffice to say, the dad’s argument that his support should be reduced because he quit his IRS job did not develop any traction and his contentions about mom’s real or potential earnings as a hairstylist also did not impress the trial court. His argument that holding him to earnings he no longer made impinged his right to pursue “happiness” under Article I, Section I of the Pennsylvania Constitution was dismissed because he provided no case authority where Pennsylvania Courts have enforced the “happiness” the authors of the Constitution granted all of us.
The second appeal related to custody and touched on support. The parties shared legal custody. Under Pennsylvania law, parents who share custody are supposed to agree on decisions relating to the management of their children. Now, when this ancient writer was a child life was pretty simple. Moms had custody. Always. Dads saw their kids from 10am Saturday until 6 pm; maybe, sometimes, overnight to the next day. There was nothing to do. Little League lasted 8 weeks in the Spring. There was no ice hockey, Tiger Shulmann, water polo, gymnastics or dressage. So, activities were $10 to register for Little League + water ice if the team won. Your parents might have to rent a clarinet for a semester or two.
Today, judges often need to set aside hours of trial time to discuss kids’ activities. One side presents an activity and its associated costs. The other side wails (a) I was never consulted (b) too dangerous (c) too expensive (d) infringes on my time with the children (e) requires travel to other states with meals, lodging and tournament fees that cost more than a trip to see the Masters Tournament at Augusta. The rebuttal consists of scorecards or video clips showing the child can hit or throw a curveball and that the new $600 football helmet virtually prevents concussions on the field. Behind all of this is the promise that if Junior can throw a 90 mph curveball, college will be “free.”
So, back to the Hamadays. They have joint custody and joint custody mandates consultation on major decisions affecting education, health and religion. 23 Pa.C.S. 5322. Mom signs up one kid for a three year karate program at a cost of $4700 a year. And guess who claims he wasn’t consulted*? Dad files for contempt of the legal custody order, meaning he wants mom to be sanctioned for willfully failing to consult about the karate. The Court hears argument and dismisses the contempt without a full hearing. That might be because karate is not a matter of health or religion and is not really what the legislature was thinking about when it discussed “education.” But father appeals because he never got his hearing.
The problem with custody contempt is that the list of remedies is thin gruel. They are:
(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 (relating to
denial or suspension of licenses).
(v) Counsel fees and costs.
23 Pa.C.S. 5323(g)
Assuming the judge thought this was contempt-worthy let’s review those remedies. Put Mom in the slammer. Really? A five hundred ($500) dollar fine is real money except that the hearing costs more than the $500 penalty if lawyers are involved. (Hint: another reason to do it yourself). Probation is a remedy we impose on criminals and while mom is no saint, enrolling a child in karate is not really criminal. Plus, what is the probation department going to do with mom? The judge can take away a driver’s license or her hairdressing license and thus leave her unable to work. That doesn’t seem smart. Counsel fees can be a remedy if Father took a chance and hired an attorney. Court costs are typically the filing fees for contempt.
Thus, the only real remedy is a $500 fine and the typical $100 filing fee.
If mom signed a contract for $4,000 worth of karate lessons (3 years @ $150 a month), the contempt remedy might be 15% of the lesson cost.
We are speculating about the karate contract and its costs because the numbers aren’t in the appellate opinion. But the court not only denied a hearing on the contempt. It held that dad should contribute to the cost of the karate he professes he did not know about. That doesn’t seem right either. And should the taxpayers of Pennsylvania be funding battles over karate or travel baseball employing commissioned judges who are paid $100 an hour to hear the case and then review it on an appeal to the Superior Court?
There needs to be a more efficient system. As lawyers, we regularly get the calls from clients outraged over the lack of consultation or even notice of what their child is doing. “Something must be done” we are told. But a contempt filing involves hundreds of dollars of legal expense, a filing fee, a 10-12 week wait for a hearing before a judge who looks back at counsel and asks:
“I get it counselor but aside from imprisonment, probation and revocation of mom’s fishing license, I got two arrows left in my judicial quiver; counsel fees and costs. And if somebody doesn’t like my ruling we can watch it on replay before the Superior Court and get a 25 page opinion. Is that why you filed?” Typically, the client sitting next to the lawyer now sees that the outrage of three months ago has culminated in a judicial thud. The “contempt” became a judicial dud and the only thing certain was the expense.
Hamaday v. Hamaday, 145 and 239 EDA 2023 (Sept. 12, 2023)
*…. The actual claim of Father is he never “consented” to the karate and as often occurs in these cases, it wasn’t the lessons that offended him, it was the cost. In his defense $4700 a year for karate seems like a lot given the incomes of the parties.
