On April 11th, 2016, the Superior Court of Pennsylvania decided the case of Commonwealth v. Taylor, holding in a 5-3 decision that a defendant’s communications with his ex-wife, who was protected by a PFA, regarding the settlement of a property were not for legitimate issues regarding their children, and consequently constituted indirect criminal contempt violations of the PFA order.
The defendant Taylor was the subject of a PFA order that protected his ex-wife, referred to as J.N.K., from any abuse by Taylor. The PFA provided that Taylor could not contact J.N.K. by telephone or by any other means, including through third persons. However, an exception was made in the PFA allowing “text message contact for the purposes of custody scheduling only.” Later, Taylor and J.N.K. entered into a separate custody consent order which provided that they “may have text communication with one another for legitimate issues involving the children.”
The communications at issue stemmed from two separate occasions. First, while in the parking lot of a convenience store, Taylor asked his oldest daughter to ask J.N.K., who was also in the parking lot, whether she had spoken to her lawyer regarding the sale of their former residence. J.N.K. shouted her responses to Taylor from across the parking lot. Taylor was later charged with indirect criminal contempt (ICC) based on his indirect contact with J.N.K. through their child.
Later, Taylor sent a text message to J.N.K. reading, “I also sent an email to your lawyer today about the house on Fourth Avenue. The bank said if you get paperwork done I told [your lawyer] about they will take your name off. So if you could please talk to her about it, me and the girls can start moving into it. Thanks. I will tell them. They said they love you.” Taylor was also charged with ICC based on the content of this text message. The trial court ruled that the content of both exchanges did not concern the well-being of the children, but rather an economic matter regarding the real property, and consequently found Taylor guilty of ICC on both counts.
Taylor then appealed these convictions, claiming that his communication with J.N.K. was limited to his change of residence to the extent that their children could be closer to their school, and thus was in compliance with the custody consent order allowing communication for legitimate issues involving the children.
In order to establish ICC, the Commonwealth must prove that 1) the PFA 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. Taylor did not dispute that the first three elements had been met, but he contended that he did not have wrongful intent to violate the PFA.
However, regarding both instances of communication, the Superior Court held that Taylor’s intent was not to discuss the well-being of the children or the custody schedule, but rather to press J.N.K. to resolve the property issue quickly. Thus, even though it was Taylor’s eventual goal to move and relocate the children for their benefit, the interests of the children were remote and tangential. Instead, the Court found no reason for Taylor’s communication with J.N.K. other than to prod her to settle the property issue more quickly, or in other words, to harass or annoy her. Accordingly, Taylor had the requisite wrongful intent to sustain his convictions for ICC, and his sentence of 90 days incarceration and a $300.00 fine was upheld.
This case demonstrates just how technical violations of a PFA can be. Some people, such as Taylor, may be charged with ICC even though they legitimately think that their actions comply with the guidelines set out in their PFA. In fact, three judges dissented from the majority and argued that Taylor’s communications adequately related to the well-being of his children. Consequently, it is very important for a subject of a PFA to use extreme caution when contacting the protected party in any way. Any violation of a PFA order can result in a serious penalty, even if the violation is seemingly harmless.
Here is the text of the Superior Court’s opinion.
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