In the matters of E.K. v. J.R.A. and J.R.A. v. E.K., 2020 EDA 184, the Superior Court of Pennsylvania reviewed two interrelated orders entered by the trial court regarding a mother (E.K.) and father (J.R.A.) litigating a protection from abuse (PFA) and custody issues, both of which were appealed by the father. At issue was whether alleged past acts of violence could be introduced as evidence at a PFA hearing and whether notice is required before entering a custody contempt order.
The mother and father have a substantial history of custody and PFA litigation against one another. Over the course of their litigation, the mother has alleged many incidences of abuse and threatening behavior committed by the father, such as inundating her with hundreds of text messages, slamming her head on the ground, and injuring her wrist by driving a truck while her hand was stuck in the steering wheel. In the parallel custody action between the parties, The mother made similar allegations as those in her PFA. The parties resolved both the PFA and the custody matter through negotiated agreements.
After some time, the mother eventually filed additional custody and PFA petitions/motions. This additional litigation culminated in an Oct. 25, 2019, PFA petition brought by the mother. This PFA petition centered on one of father’s social media posts that the mother found threatening. During her testimony at the hearing for this PFA, the mother testified to a variety of violent and threatening acts allegedly committed by the father, some of which were alleged in the claims made in the PFA at issue.
At the conclusion of the hearing, the trial court entered an order granting the PFA. In addition, and unexpectedly, the court also made a sua sponte ruling in the parties’ custody case, entering a second order finding the father in contempt of the applicable custody order and ordering him incarcerated. In response to the above orders, the father filed an appeal of the PFA matter and an emergency motion to vacate the contempt order and to release him from custody. In response, the trial court entered a supplemental order releasing the father from custody and denied the emergency motion as moot. The father appealed both the PFA and custody contempt orders.
On appeal, the father argued that the trial court abused its discretion in granting the PFA by considering his alleged past acts of violence, and violated his due process rights by entering a custody order without adequate prior notice.
With regard to the PFA, the father argued that the trial court’s consideration of alleged past acts of violence ran afoul of the doctrines of res judicata and collateral estoppel. The father argued that as he and the mother had extensive prior litigation regarding these alleged prior acts of violence—some of which did not result in a ruling in the mother’s favor—they should have been precluded from consideration. The court rejected these arguments. First, it ruled that res judicata did not apply as the PFA in the instant matter addressed a separate incident of alleged abuse than those addressed in the prior PFA litigation, namely a specific social media post. Second, collateral estoppel was held not to apply as the allegations in the prior PFA action was resolved by agreement, so neither party had a full or fair opportunity to litigate those allegations at the prior proceeding. In addition, prior PFA matters also dealt with the father’s alleged abuse of other parties and not necessarily the mother, who was the plaintiff in the instant PFA.about:blank
The court noted that a critical element of a PFA is whether the plaintiff has a reasonable fear of bodily injury. The court specifically observed that past abusive conduct is “a critical inquiry necessary for entry of a proper order” and that “past acts are relevant to determine the reasonableness of the petitioner’s current fear.” The fact that some of these alleged acts took place more distantly in the past is not necessarily determinative. Instead, such a history could reveal a pattern of behavior that may leave long-lasting trauma on the victim of the abuse long after the incident which caused it, and it is entirely reasonable to consider that when entering a PFA order.
Finally, the father took issue with the fact that the PFA order not only prohibited him from contacting the mother, but also prohibited him from some interaction with the mother’s boyfriend and co-workers, as well as the children of the parties. The father argued that as these other individuals were not parties to the PFA, did not testify at the hearing, and the father had never been to the mother’s place of work, so the court abused its discretion when it included them in the order. The court ruled that per 18 Pa.C.S. Sections 2709 and 2709.1 and 23 Pa.C.S. Section 6108, the trial court was within its authority to include other “designated persons” with whom the father must avoid contact as that could help “bring about the cessation of abuse of the plaintiff.” Further, the court also mentioned that the PFA Act “does not require the plaintiff to initiate a PFA action on behalf of children in order to obtain custody relief” and, to that end, a “court shall consider any risk posed by the defendant to the children as well as risk to the plaintiff” which “allows for the entry of a temporary custody/visitation order” in the context of a PFA. Indeed, “the trial court may even award sole custody to a plaintiff without evidence that children were abused.” Based on the above, therefore, the father’s appeal of the PFA order was dismissed.
Despite his lack of success in the PFA matter, the father had better luck in the custody matter. With regard to the custody matter, the father argued that the trial court finding him in contempt of a custody order on a sua sponte basis violated his due process rights. No party filed a petition for contempt of custody, and he never received any notice that the trial court hearing a PFA petition would also decide a custody petition. The court noted that the trial court entered a finding of custody contempt “without warning at the conclusion of the hearing regarding the mother’s PFA petition.” Indeed, the father claims he never had opportunity to even present evidence on the custody matter.
The court ruled that despite the fact that the custody and PFA matters are “interrelated,” they are indeed “wholly separate matters.” The father was not afforded any indication that he would have to defend against an allegation of custody contempt in the context of a PFA. The record confirmed the father’s claim that he was not even allowed an opportunity to be heard on the contempt matter. In light of the above, the court held that as father has no notice that custody contempt would be at issue, and not given any opportunity to be heard, the trial court did, in fact, violate his due process rights; therefore, the custody contempt order was vacated.
When litigating PFA matters, practitioners should keep this decision in mind as Superior Court has made it clear that not only can past abuse be presented at PFA hearings, but nonparties can, if the circumstances are right, be included as part of the resulting PFA order. Of course, this matter is also a great reminder that parties are always entitled to notice of the issues to be presented at a hearing and that they should have the opportunity to be heard and defend themselves from the same.
James W. Cushing is senior associate at the Law Office of Faye Riva Cohen and managing attorney for Legal Research Inc., and sits on the executive committee of the family law section of the Philadelphia Bar Association.
Published in The Legal Intelligencer on September 28, 2020 and reprinted in the Pennsylvania Family Lawyer in its Winter 2020 edition (Vol. 42, Issue No. 4).