Child Custody, Visitation & Relocation

Father Awarded Attorneys Fees Where Wife’s Emergency Child Custody Petition was Obdurate, Vexatious and in Bad Faith

In the family law, child custody case of S.B. v. J.B., PICS Case No. 15-0301 (C.P. Lycoming, Jan. 2, 2015) the Honorable Joy Reynolds McCoy ruled that plaintiff mother’s appeal from the award of attorney fees to defendant father should be denied where defendant proved plaintiff’s filing of the petition for emergency child custody was obdurate, vexatious and in bad faith, pursuant to 23 Pa. C.S. 5339.

Father filed a petition for counsel fees, costs, and expenses pursuant to 23 Pa.C.S. 5339, under which a court may award reasonable interim or final counsel fees, costs and expenses to a party if the court finds that the conduct of another party was “obdurate, vexatious, repetitive or in bad faith.” Father’s petition related to mother’s petition for emergency custody, in which she alleged father was sexually abusing the parties’ minor child. Mother appealed the court’s order awarding counsel fees.

The court denied mother’s petition for after a hearing. A hearing on father’s petition for counsel fees, costs and expenses was scheduled and mother appeared without an attorney. Mother was questioned regarding the circumstances surrounding the petition for emergency custody. After the court learned that mother was under criminal investigation for filing false reports that father had sexually abused their child, the court granted mother’s request for a continuance to allow her to seek legal counsel. At the time set for the continuation of the hearing, mother did not appear.

Mother offered not evidence as to father’s petition. Mother’s statement did not report her own concerns that lead to the filing of the petition for emergency custody, but instead restated her disagreement with the court’s determination as to emergency custody.

Mother asserted the court erred in finding her to be obdurate, vexatious and acting in bad faith in awarding counsel fees, costs and expenses pursuant to 23 Pa.C.S. 5339. The court found that mother’s testimony regarding her filing of the emergency custody petition was not credible. Mother’s statements to the police and in court were inconsistent. Further, mother’s behavior leading up to the filing of the petition constituted evidence of the obdurate, vexatious and acting in bad faith behavior.

Mother also asserted that the trial court erred by relying on speculative testimony by the child to determine an award of counsel fees. The court did not rely on the child’s testimony in regard to the petition. The child did not testify at the hearings, although the transcript from the proceeding was entered into evidence. The court dismissed the petition for emergency custody based in part on the child’s testimony. However, this was not the basis for the award of counsel fees. Mother’s behavior and intention in the filing of the custody petition led to the court’s determination and award of counsel fees.

Mother contended that the trial court erred in reversing the burden of proof. Also, she contended the trial court erred by extending sympathies to defendant instead of focusing on the best interests of the child.

The court found that father’s testimony regarding the incidents surrounding the filing of mother’s custody petition was credible. The court did not consider the effects mother’s petition had on father beyond the financial circumstances of his bill for legal services. The court did not sympathize with father’s situation, but focused on the child. The court considered the best interest of the child and the need to hold a party accountable for the negative effect on the child of an obdurate, vexatious and in bad faith filing.

Father met his burden of proving mother’s behavior was obdurate, vexatious, and in bad faith. Mother’s appeal should be denied.

Reference: Digest of Recent Opinions; Pennsylvania Law Weekly; 38 PLW 209 (March 3, 2015)

Filed Under: Family Law; Child Custody; Attorney Fees; Bad Faith Filing

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