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DEFENDANT WHO ASKED ABOUT STATUS OF SETTLEMENT OF JOINTLY-OWNED HOME SO HE COULD MOVE IN WITH HIS CHILDREN VIOLATED PFA ORDER BECAUSE INQUIRY DID NOT INVOLVE HIS CHILDREN

In a 5-3 decision, the Superior Court has announced the decision of Commonwealth v. Taylor, No. 1723 WDA 2013 (April 11, 2016), holding that a Defendant’s contacts with a party protected by a Protection From Abuse (“PFA”) Order in order to discuss the settlement of a residential property in which he was going to move with their children were not for legitimate issues regarding the children and, therefore, constituted Indirect Criminal Contempt violations of the PFA Order.

FACTS

Taylor was the subject of a Protection From Abuse (“PFA”) Order, protecting J.N.K. from any abuse by Taylor. Taylor and J.N.K. had two daughters who were not protected by the Order; however, the girls were the subjects of a Custody Order.

The terms of the PFA Order, in pertinent part, directed that Taylor: (1) should not abuse, harass, stalk, or threaten any of the above persons in any place where they might be found and (2) should not contact J.N.K., or any other person protected under the order, by telephone or by any other means, including through third persons. Notably, the PFA permitted the parties to have “text message contact for purposes of custody scheduling only.”

Following the entry of that PFA Order, a separate custody order was entered by consent of the parties providing, in pertinent part, that the parties could have “text communication with one another for legitimate issues involving the children.”

J.N.K. alleged and testified that Taylor had communication with her that he sent through the parties’ oldest daughter during a custody exchange wherein he asked J.N.K. whether she had spoken with her attorney yet regarding the sale of a jointly-owned home they owned that he was planning to move into with his daughters. He also sent a subsequent text message to J.N.K., stating that he submitted paperwork regarding the sale of the marital home to J.N.K.’s attorney.

The trial court found that the above communications showed Taylor knew to communicate with J.N.K.’s attorney; but, he contacted J.N.K. instead when financial matters surrounding the house were progressing too slowly for him. Accordingly, Taylor was convicted after the bench trial and subsequently filed an appeal from a judgment of concurrent sentences of 90 days incarceration together with a $300.00 fine on two separate counts of Indirect Criminal Contempt (“ICC”) of a Protection From Abuse (“PFA”) Order.

Significant to the purpose of this blog, Taylor challenged the sufficiency of the evidence to support both of his ICC convictions.

ISSUES

Whether Taylor’s contacts with J.N.K. in order to discuss the settlement of jointly-owned residential property in which he was going to move with their children were for legitimate issues involving the children?

HOLDING

Taylor’s contacts with J.N.K. were not for legitimate issues involving the children; rather, they were to discuss issues regarding the jointly-owned property of the parties and, therefore, constituted ICC violations of the PFA Order.

REASONING

Taylor argued on appeal that the trial court convicted him of both counts of ICC based upon the PFA Order entered on May 18, 2012, without regard to the custody modification order entered on May 22, 2013 that expanded contact to include text communication between the parties for legitimate issues involving the children. Therefore, because – in Taylor’s view – his communications with J.N.K. concerned nothing more than communication regarding the house where he was going to move with his daughters, the communications were for legitimate issues concerning the children and the Commonwealth field to prove that he willfully intended to violate the PFA.

The Superior Court first set forth the standard for analyzing ICC violations of a PFA Order, stating that where a PFA order is involved, an ICC charge is designed to seek punishment for violation of the protective order. And, in order to establish the ICC, 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.

In finding that the first three elements were rather easily proven, the analysis truly focused on whether Taylor acted with wrongful intent when he communicated with J.N.K. on the two-mentioned occasions. After performing this analysis, the Superior Court ultimately agreed with the trial court’s conclusion that Taylor’s two communications with J.N.K. constituted violations of both the PFA Order and the custody consent order because Taylor’s true intent was not to discuss matters involving the children’s well-being or custody schedule. Rather, Taylor was aware of prohibitions in the Orders; he voluntarily initiated both communications with J.N.K; and, in doing so, his intent was to discuss with J.N.K. the outstanding issues regarding their jointly-held real property and to impress upon her, his desire to come to a quick resolution.

The Superior Court majority concluded that the communications were, therefore, made in violation of the applicable Court Orders.

DISSENT

Notably, the three dissenting judges concluded that Taylor’s communications did have the legitimate purpose of discussing the issue of their children’s housing. Accordingly, in their opinion, the communications were permissible under the parties’ custody consent order and should not have constituted ICC violations.

http://www.pacourts.us/assets/opinions/Superior/out/J-E01013-16o%20-%201026157566818088.pdf?cb=1

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