OPINION BY DUBOW, J.:
Appellant, Jennifer E. Courtney, appeals from the August 8, 2017 Order
On May 18, 2016, Appellant filed a Petition for a Temporary Protection From Abuse ("PFA") Order against Appellee, her then-husband, while she was seeking a divorce. The parties had three biological children, all under age seven, and shared physical and legal custody. In her Petition, Appellant alleged "constant sexual abuse," "constant harassment," physical abuse, and described Appellee's attempt "to make a deal to move out but continue sexual acts." Petition for Temporary PFA, dated 5/18/16, at 3.
The parties litigated divorce, custody, and PFA proceedings over the ensuing months. A subsequent custody Order granted shared legal and physical custody. Custody Order, dated 9/19/16, at 1-2. Another Order prohibited Appellant's boyfriend from being in the residence during her custody time. Interim Order, dated 6/3/17.
On June 22, 2017, Appellant filed a second Temporary PFA Petition, in part due to an incident during a custody exchange. In addition to referencing the prior history of "sexual abuse and control," Appellant alleged as follows:
Petition for Temporary PFA, dated 6/22/17, at 3.
On August 3, 2017, Appellee notified Appellant that he would file an Emergency Petition for Counsel Fees alleging Appellant had filed her second Temporary PFA Petition in bad faith.
On August 8, 2017, the parties appeared for a hearing on the second PFA. Prior to the hearing, Appellant agreed to withdraw her PFA Petition if the court entered an Order directing the parties, inter alia, to exchange custody at the local police department and routinely communicate only by email. The trial court granted Appellant's request and entered an Order withdrawing Appellant's PFA Petition and imposing the requested conditions. PFA Withdrawal Order, dated 8/8/17. Because of this resolution, the court did not conduct the PFA evidentiary hearing.
That same day, however, the court conducted a hearing on Appellee's Emergency Petition for Counsel Fees that was based on Appellant's filing of the second Temporary PFA Petition.
As a result, the trial court entered an Order granting Appellee's Petition and directing Appellant to pay $ 310 in counsel fees payable within ten days.
Appellant filed a timely Notice of Appeal on September 6, 2017. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
Appellant's Brief at 4 (capitalization omitted).
"Our standard of review of an award of counsel fees is well settled: we will not disturb a trial court's determination absent an abuse of discretion."
We will address Appellant's first and third issues together. Section 6117(b) of the Domestic Relations Code provides: "Notwithstanding any other provision of law, upon finding that an individual commenced a proceeding under this chapter in bad faith, a court shall direct the individual to pay to the defendant actual damages and reasonable attorney fees." 23 Pa.C.S. § 6117(b). Section 6117(b) then cautions trial courts: "
The Domestic Relations Code does not define bad faith. Black's Law Dictionary defines "bad faith" as "[d]ishonesty of belief, purpose, or motive." Black's Law Dictionary (10th ed. 2014).
This Court has explored the concept of bad faith in other contexts, but not with respect this statute.
In defending its award of counsel fees, the trial court opined as follows: "Upon questioning by her counsel, [Appellant] stated that the basis for the PFA arose from a fear created by [Appellee] after he came to her house and tried to forcibly enter her home. However, subsequent testimony served to disprove this basis." Trial Court Pa.R.A.P. 1925(a) Opinion, dated 11/6/17, at 5 (footnote omitted). Of particular importance to the trial court's decision: "Absent was any testimony of [Appellee's] attempt of forcible entry, which [Appellant] explained was the basis for her alleged fear that [led] to her seeking a PFA in the first place."
After careful review, we conclude that (1) trial court misapplied the clear dictates of Section 6117(b), and (2) the record does not support the trial court's finding of bad faith.
First, we hold that the trial court found bad faith due to Appellant's failure to prove her allegations of abuse by a preponderance of the evidence. The court equated the failure to prove her allegation with Appellant's bad faith. This is contrary to Section 6117(b), which instructs that the "[f]ailure to prove an allegation of abuse by a preponderance of the evidence shall not, by itself, result in a finding of bad faith." 23 Pa.C.S. § 6117(b).
Second, the trial court's bad faith finding is unsupported by the certified record. In making its finding on the record, the trial court simply restated Appellant's original allegation as described by her during her testimony at the hearing on the Emergency Petition for Counsel Fees wherein she mentioned forcible entry. However, Appellant had not included forcible entry as part of her allegations in her second Temporary PFA Petition and no hearing on the PFA occurred.
In sum, the trial court misapplied the clear dictates of Section 6117(b) because it found bad faith due to Appellant's failure