J.M. v. K.W. ( 2017 )

J-E01006-17
2017 PA Super 167J.M. IN THE SUPERIOR COURT OF
Appellee PENNSYLVANIA
v.
K.W.
Appellant No. 76 MDA 2016
Appeal from the Order Entered December 24, 2015
In the Court of Common Pleas of Schuylkill County
Civil Division at No(s): S-523-2014
BEFORE: BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON,
DUBOW, MOULTON AND SOLANO, JJ.
OPINION BY BOWES, J.: FILED MAY 31, 2017
K.W. (“Mother”) appeals the December 24, 2015 order wherein the
trial court held her in contempt and stripped her of primary physical custody
of the parties’ then-four-year-old-son, B.M., and three-year-old daughter,
V.M. As the modification of physical custody is an improper sanction for
contempt, we vacate the order and remand for further proceedings.
B.M. and V.M. were born of the marriage between Mother and J.M.
(“Father”). After the parties separated, Father filed a child custody
complaint on March 20, 2014. The following day, the parties entered a
stipulated custody agreement that accorded Mother primary physical custody
of the children pending the custody trial. As it relates to the present appeal,
the trial court entered several orders, including a March 25, 2014 order
J-E01006-17
scheduling the custody conference, which specifically prohibited relocation
without prior court approval pursuant to 23 Pa.C.S. § 5337.
On April 25, 2014, Mother filed a counterclaim to the custody
complaint and issued notice of her proposed relocation with B.M. and V.M.
from her residence in Pottsville, Schuylkill County, to Lancaster, Lancaster
County, approximately one-and-one-half hours away. Father filed a
counter-affidavit objecting to Mother’s proposed relocation. However, prior
to obtaining the trial court’s authorization under § 5337, Mother relocated
with the children to Lancaster during May 2015, and she purchased property
in that county two months later.
Father responded to the move by filing a petition for special relief and
contempt. During the contempt hearing, Father established that Mother had
relocated to Lancaster without prior court approval and enrolled B.M. in a
Lancaster-area preschool without Father’s knowledge or consent. On
December 24, 2015, the trial court entered the above-referenced order that
found Mother in contempt, and, as a sanction, reduced her custodial rights
from primary physical custody of B.M. and V.M. to shared custody. The
order was to remain in effect until the underlying custody dispute was
resolved. The trial court also awarded Father $2,214.00 in attorney fees.
On January 12, 2016, Mother filed a timely notice of appeal and
statement of errors complained of on appeal pursuant to Pa.R.A.P.
-2-
J-E01006-17
1925(a)(2)(i). The trial court issued its Rule 1925(a) opinion on January 26,
2016.
Mother presents the following questions for our review:
I. Did the [trial] court err and abuse its discretion by
adjudicating [Mother] in contempt of court, where the petition
for contempt did not contain the notice and order to appear, as
mandated by [Pa.R.C.P. 1915.12] and no order which was
allegedly violated was either referenced in the petition or
attached to the petition, as mandated by Pa.R.C.P. 1915.12(b)
and (c)?
II. Did the [trial] court err and abuse its discretion by finding
[Mother] in contempt of court as a result of her move from
Pottsville, Schuylkill County, Pennsylvania to Lancaster,
Lancaster County, Pennsylvania, without leave of court, where
none of the existing custody orders contained the required
“relocation” language, as mandated under the Pennsylvania
Rules of Civil Procedure and the laws of the Commonwealth of
Pennsylvania, and where [Mother’s] move was not a relocation,
which is defined as: “a change in a residence of a child which
significantly impairs the ability of a non-relocating party to
exercise custodial rights[,”] since [Mother’s] move to Lancaster
County did not significantly impair [Father’s] ability to exercise
his custodial rights, and he in fact was receiving more time with
his Children than the original custody order provided, and
[Mother] and [Father] always chose the pick[-]up and drop[-]off
location, and [Father] never missed any of his custodial time
following [Mother’s] move to Lancaster County, Pennsylvania?
III. Did the [trial] court err and abuse its discretion by finding
that [Mother] was in contempt as a result of her enrolling the
parties’ son . . . in preschool, allegedly without [Father’s]
knowledge, permission or consent, where none of the custody
orders which were then in place contained “legal custody”
provisions, and [the child] was attending preschool only during
the time when it was [Mother’s] custodial period?
IV. Did the [trial] court err and abuse its discretion by
specifically finding that “an appropriate sanction (for contempt)
is to award shared custody until the parties undergo trial[,”] and
-3-
J-E01006-17
did the [trial] court err and abuse its discretion by imposing as a
sanction for contempt a significant modification of the existing
custody order, from a primary physical custody order to a shared
custody order?
Mother’s brief, at 4-5.
At the outset, we must determine whether the appeal is properly
before us. We observe that the trial court’s modification of physical custody
“until such time as the [matter proceeds to a] pending custody trial” is
temporary with respect to the custody determination. Trial Court Order,
12/24/15, at unnumbered 8. It is well-ensconced in Pennsylvania that an
interim custody order is not appealable. G.B. v. M.M.B., 670 A.2d 714, 720
(Pa.Super. 1996). The rationale behind this precept is that, until the trial
court has rendered its best-interest determination on the merits, an interim
custody order is ephemeral and subject to further modification upon petition.
Thus, at first blush, it appears that this portion of the appeal is interlocutory.
However, upon closer examination of the pertinent issue, it is obvious
that the instant order is not an interim determination of the children’s best
interest, and Mother does not challenge the trial court’s determination of
custody per se. In reality, the order in the case at bar is a finding of
contempt and a concomitant sanction, which as we discuss infra, was
entered in contravention of our jurisprudence regarding the modification of
custody as a consequence of contempt. While an order granting temporary
or interim custody is interlocutory, it is beyond cavil that a finding of
-4-
J-E01006-17
contempt is final and appealable when a sanction is imposed. Stahl v.
Redcay, 897 A.2d 478 (Pa.Super. 2006). Thus, the order is appealable.
We first review the propriety of the contempt order, and since we
sustain the trial court’s finding that Mother was in contempt for relocating
with the children without permission and/or enrolling their son in preschool
without consulting Father, we will then determine whether the trial court
imposed an appropriate sanction.
Preliminarily, we review the merits of the substantive challenges that
Mother raises in issues two and three. In issue two, Mother asserts that the
trial court erred in finding her in contempt for relocating the children from
Schuylkill County to Lancaster County. The crux of Mother’s argument is
that the custody order that was in effect did not preclude her from
relocation. She continues that, although the relevant language was included
in at least one of the trial court’s scheduling orders, Father failed to attach
that order to his contempt petition or demonstrate that she was aware that
the order existed. These arguments fail.
It is established: “To be in contempt, a party must have violated a
court [o]rder, and the complaining party must satisfy that burden by a
preponderance of the evidence.” Hopkins v. Byes, 954 A.2d 654, 655 (Pa.
Super. 2008) (citation omitted). Specifically, “the complainant must prove
certain distinct elements[:] (1) that the contemnor had notice of the specific
order or decree which he is alleged to have disobeyed; (2) that the act
-5-
J-E01006-17
constituting the contemnor's violation was volitional; and (3) that the
contemnor acted with wrongful intent.” P.H.D. v. R.R.D., 56 A.3d 702, 706
n.7 (Pa.Super. 2012).
Instantly, as Mother acknowledges, the trial court’s March 25, 2014
scheduling order expressly highlighted in bold type, “No party may make a
change in the residence of any child which significantly impairs the ability of
the other party to exercise custodial rights without first complying with all of
the applicable provisions of 23 Pa.C.S. § 5337 and Pa.R.C.P. No. 1915.17
regarding relocation.” Trial Court Order, 3/25/14. Section 5337 of the Child
Custody Law instructs that a party wishing to relocate must provide notice of
such intent prior to moving, to which any party entitled to receive notice
may file objections. The statute continues, “No relocation shall occur
unless: (1) [the parties consent]; or (2) the court approves the proposed
relocation.” 23 Pa.C.S. § 5337(b). However, before a court may approve a
proposed relocation several things must occur. First, “[t]he party proposing
relocation shall notify every other individual who has custody of the child[,]”
and inform them of the particulars of the proposed move. 23 Pa.C.S. §
5337(c) (1)-(4). Next, if a non-relocating party files an objection to the
proposed relocation, the trial court is required to hold a hearing in which the
party proposing relocation has the burden of proving that the move would
serve the child’s best interest in light of the factors set forth in § 5337(h)
(1)-(10). 23 Pa.C.S. §5337(d), (g), (h) and (i). Absent exigent
-6-
J-E01006-17
circumstances that warrant relocation prior to the evidentiary hearing, the
trial court will not approve the move until a full consideration of all the
relevant statutory factors addressed during the hearing. 23 Pa.C.S. §
5337(g).
All of the required steps did not occur herein. One month after the
entry of the March 25, 2014 order, Mother issued notice to Father of her
intention to relocate to Lancaster County with the children. However, after
Father filed notice of his objection, Mother relocated without permission in
contravention of the March 25, 2014 order directing her to comply with the
relocation provision of § 5337. As Mother ignored Father’s objection to her
proposed relocation and acted unilaterally in moving with the children before
obtaining the trial court’s approval, the certified record sustains the trial
court’s finding that Mother was in contempt.
Furthermore, we reject Mother’s insinuation that she did not receive
notice of the March 25, 2014 scheduling order informing her of the
proscription against relocation without prior court approval in compliance
with § 5337. The very fact that Mother issued notice of her proposed
relocation within one month of the trial court’s directive is compelling
evidence that she knew of the order and sought to comply, at least initially,
with it.
Similarly unavailing is Mother’s assertion that her surreptitious move
with the parties’ children from Schuylkill County to Lancaster County was not
-7-
J-E01006-17
a “relocation.” Noting that a proposed move’s effect on the non-relocating
party’s custodial rights is a fundamental component of the statutory
definition of relocation, Mother asserts that, since she permitted Father
greater access to the children after the move to Lancaster than was required
by the custody order, it did not fall within the definition of relocation.1
Mother cites our holding in C.M.K. v. K.E.M., 45 A.3d 417, 425-426
(Pa.Super. 2012) in support of her position that the move was not a
“relocation.” The C.M.K. Court found that a trial court erred in concluding
that the mere fact that a custodial parent issued notice of a proposed
relocation was determinative of whether the move would have met the
statutory definition of a relocation. We reasoned that whether a custodial
parent’s decision to move the children to another location was tantamount to
a relocation under the Child Custody Law depended upon whether the move
significantly impaired the non-relocating party’s ability to exercise custody.
Nevertheless, we found that the evidence adduced during the relocation
hearing established that the proposed move constituted a relocation.
The crux of Mother’s position is that, since she increased Father’s
custodial rights after she moved the children to Lancaster without
permission, the change did not fall within the statutory definition of
____________________________________________
1
Section 5322 of the Child Custody Law provides, in pertinent part,
“‘Relocation.’ A change in a residence of the child which significantly impairs
the ability of nonrelocating party to exercise custodial rights.”
-8-
J-E01006-17
“relocation,” and therefore she was not bound by the procedures outlined in
§ 5337. This argument, which is premised on strained interpretations of
both our holding in C.M.K. and the statutory definition of “relocation,”
demonstrates Mother’s general misunderstanding of § 5337.
By definition, a relocation impacts the non-relocating party’s ability to
exercise custody. However, unlike the issue in C.M.K., supra, we need not
determine whether the move to Lancaster fell within the statutory definition
of “relocation” in this case because Mother clearly believed that it might
when she issued notice of the proposed relocation pursuant to § 5337. That
decision belies her current assertion that § 5337 was inapplicable. Unlike,
the trial court in C.M.K., we are not concluding that Mother tacitly conceded
that the proposed move was, in fact, a relocation. To the contrary, we find
that, having initiated the relocation procedure pursuant to § 5337, Mother
violated the terms of the March 25, 2014 order by ignoring the steps
required by the statute.2
____________________________________________
2
This case is distinguishable from C.M.K. v. K.E.M., 45 A.3d 417 (Pa.Super.
2012), insofar as Mother’s actions deprived the trial court of its ability to
consider any evidence to determine whether the proposed move did, in fact,
constitute a relocation within the meaning of the Child Custody Law. In
C.M.K., the mother followed the correct procedure and the trial court held
an evidentiary hearing before determining, inter alia, that the proposed
move constituted a relocation because it involved changes that would
significantly impair the father's ability to exercise his current custodial rights.
As Mother abandoned the § 5337 procedures in this case, the required
hearing did not occur, and the trial court was unable to confront the precise
(Footnote Continued Next Page)
-9-
J-E01006-17
Moreover, although Mother was willing to supplement Father’s
custodial periods in order to mitigate the harm caused by the move, that
fact was but one of ten relocation factors that the trial court would have
considered during the full hearing to determine the children’s best interest
under § 5337(h)(1)-(10), had Mother not usurped § 5337 and relocated to
Lancaster County prematurely. Thus, Mother’s post hoc generosity in
seeking to lessen the damage to Father’s rights did not negate the fact that,
by relocating without permission, she violated the scheduling order directing
her to comply with § 5337. No relief is due.
In her third issue, Mother contends that the trial court abused its
discretion by finding her in contempt for enrolling B.M. in preschool without
Father’s knowledge or permission. Essentially, this question relates to
whether Mother impinged upon an order regarding legal custody, i.e., “The
right to make major decisions on behalf of the child, including, but not
limited to, medical, religious and educational decisions.” 23 Pa.C.S. § 5322.
Mother highlights that none of the then-existing orders specifically addressed
who would exercise legal custody. As the record sustains Mother’s
observation that a relevant determination of legal custody did not exist, we
agree with her position that the trial court erred in finding her in contempt in
_______________________
(Footnote Continued)
issue that Mother is trying to resurrect on appeal, i.e., whether the move
constituted a relocation.
- 10 -
J-E01006-17
this respect. Stated plainly, while Mother demonstrated a remarkable lack of
cooperation by acting unilaterally to place B.M. in the daycare of her choice,
she did not contravene an existing court order. Thus, the fundamental
element of civil contempt is missing in this case. See Hopkins, supra;P.H.D., supra. In light of our decision to reverse this aspect of the
contempt order, we remand the matter for the trial court to re-evaluate the
award of counsel fees.
Next, having sustained the trial court’s finding of contempt as it relates
to Mother’s unauthorized relocation to Lancaster, we review the propriety of
the court’s decision to alter physical custody as a contempt sanction. This
issue subsumes the first and fourth issues that Mother lists in her statement
of questions presented on appeal. Mother contends that the trial court
violated her due process rights by modifying the custody arrangement
concomitant with the contempt adjudication. The crux of Mother’s argument
is that Father’s contempt petition provided insufficient notice that custody
would be at issue during the contempt proceedings. She continues that, by
awarding custody to Father without affording notice that the existing custody
order could be modified, the trial court denied her the opportunity to defend
against modification.
Father counters that Mother had notice that he sought custody as a
result of her alleged contempt. He points out that his petition entreated the
court to grant him custody of their children and the proposed order that he
- 11 -
J-E01006-17
attached to his petition provided, “Plaintiff is granted primary custody until
further order of court.” Petition for Special Relief and Contempt, 9/23/15, at
unnumbered page 2, and attached proposed order. Thus, Father contends
that Mother had the opportunity to prepare for the contempt proceedings
and to advocate her position vis-à-vis the custody request. For the reasons
that follow, we disagree.
It is settled that an adjudication of contempt is not a proper basis to
modify an existing custody arrangement.3 See Clapper v. Harvey, 716
A.2d 1271, 1275 (Pa.Super. 1998) (“a mother’s violation of a custody order
may be an appropriate foundation for a finding of contempt, but it cannot be
____________________________________________
3
The Child Custody Law outlines the sanctions for contempt as follows:
(1) A party who willfully fails to comply with any custody order
may, as prescribed by general rule, be adjudged in contempt.
Contempt shall be punishable by any one or more of the
following:
(i) Imprisonment for a period of not more than six months.
(ii) A fine of not more than $500.
(iii) Probation for a period of not more than six months.
(iv) An order for nonrenewal, suspension or denial of operating
privilege under section 4355 (relating to denial or suspension of
licenses).
(v) Counsel fees and costs.
23 Pa.C.S. § 5323(g).
- 12 -
J-E01006-17
the basis for an award of custody”); Rosenberg v. Rosenberg, 504 A.2d
350, 353 (Pa.Super. 1986) (“A custody award should not be used to reward
or punish a parent for good or bad behavior”). This Court has confronted
several cases where the trial court awarded one party custody as a sanction
for the other party’s contumacious conduct. See e.g. Langendorfer v.
Spearman, 797 A.2d 303 (Pa.Super. 2002); and Everett v. Parker, 889
A.2d 578, 581 (Pa.Super. 2005); cf. Steele v. Steele, 545 A.2d 376(Pa.Super. 1988) (noting that it is generally improper for trial court to
modify custody arrangements without petition for modification before it).
The effect of this jurisprudence is that a trial court’s ability to alter custody
as a contempt sanction is restricted to circumstances where the responding
party is given express notice that custody will be at issue during the
contempt proceeding and the modification is based upon the determination
of the child’s best interest.
In Langendorfer, supra, the mother, who maintained partial physical
custody of her son during the summer, filed a contempt petition against the
father asserting that he had violated the existing custody arrangement.
Notably, the Mother’s contempt petition failed to include any request to
transfer custody and the order scheduling the contempt hearing did not
notify either party that custody would be an issue during the contempt
proceedings. Moreover, there was no indication in the record that the trial
court consolidated the mother’s contempt petition with the father’s
- 13 -
J-E01006-17
previously filed motion to temporarily adjust the custody schedule.
Following the contempt hearing, the trial court awarded the mother sole
legal and physical custody of the child. However, relying upon the precept
discussed in Choplosky v. Choplosky, 584 A.2d 340, 342 (Pa.Super.
1990), “without a motion to modify visitation rights before it, a trial court
may not permanently alter the visitation rights of [the] parties,” this Court
vacated the custody order on appeal as violating the father’s right to due
process.
We reiterated the Langendorfer Court’s rationale in P.H.D. v.
R.R.D., 56 A.3d 702, 707-708 (Pa.Super. 2012), and concluded, “As in
Langendorfer, Father here had no notice that custody was at issue. Neither
the contempt petition nor the notice and order to appear held out the
prospect of custody modification.” Similarly, in Everett, supra at 581, this
Court explained, “When modification of custody is sought by a custody
contempt petitioner, the respondent must be given particular notice of that
objective.” In reaching that determination, we reasoned that the requisite
notice must appear both in the body of the contempt petition and in the
order to appear. Everett, supra at 581.
In Everett, a father filed a pro se contempt petition against the
mother who maintained primary custody of his child. While the third page of
the contempt petition requested a change in the custody arrangement, the
father failed to serve the petition on Mother properly. Instead, he mailed a
- 14 -
J-E01006-17
copy of the petition to an attorney who represented mother during prior
dependency proceedings and to the family’s CYS caseworker. Neither the
mother nor her former attorney, who never entered an appearance in the
custody dispute, appeared at the contempt hearing. Nevertheless, based
upon the caseworker’s statement that she had provided the mother with
actual notice of the date and time of the hearing, the trial court determined
that the mother received sufficient notice of the father’s petition.
Accordingly, it held the contempt hearing ex parte, found the mother in
contempt, and modified the existing custody order by awarding the father
primary custody of his son. On appeal, we vacated the contempt order.
As it relates to the issue in the case at bar, the Everett Court
concluded that the trial court violated the mother’s right to due process by
modifying the custody order as part of the contempt proceedings because
the mother was denied specific notice that custody would be at stake in the
contempt proceedings. Noting that the mother was not properly served with
the contempt petition that implicated the custody arrangement or with the
notice of the scheduled contempt hearing, we determined that the
caseworker’s notification to the mother concerning the time and date of the
proceedings was insufficient. Specifically we reasoned, “Formal notice and
an opportunity to be heard are fundamental components of due process
when a person may be deprived in a legal proceeding of a liberty interest,
- 15 -
J-E01006-17
such as physical freedom, or a parent’s custody of her child.” Everett,
supra at 580.
Thus, as the foregoing discussion of relevant binding authority
highlights, a trial court may transfer physical custody at the conclusion of a
contempt hearing only when the modification suits the child’s best interest in
light of the statutory factors and the respondent has been given particular
notice of that objective. In reaching our decision, we stress that the reason
for the notice requirements is more than a procedural formality. Indeed,
without particularized notice that custody would also be at issue at the
contempt hearing, a respondent would not be prepared to litigate the
custody dispute during the contempt proceedings and the trial court would
be denied the benefit of both parties’ relevant evidence concerning the
children’s well-being. Consequently, as this Court previously explained in
Langendorfer, supra at 309, the trial court would lack the required
information to make the “quintessentially crucial judgment” as to the
children’s best interests.
It is of no moment that the trial court’s modification was ostensibly
temporary because the foregoing principles apply with equal effect to
provisional orders. First, all custody awards are temporary insofar as they
are subject to modification by an ensuing court order any time that it
promotes the child’s best interest. Thus, by force of circumstances, no
- 16 -
J-E01006-17
award of child custody is permanent regardless of whether the order is
styled as interim or final.
Second, as the prolonged history of this case demonstrates, the
judicial machinery may stall or become so congested that a temporary order
forms the de facto status quo regardless of its purported impermanence.
Instantly, Father filed the underlying custody complaint on March 21, 2014,
yet the custody trial was not scheduled until approximately two years later,
and then that proceeding was stayed indefinitely because the custody
evaluation that was performed during Spring 2014 had grown stale. Indeed,
as of the date of this writing, the theoretically “temporary” order that Mother
challenges herein has governed the parties’ custody arrangement for
approximately sixteen months since its inception on December 24, 2015.
There still has not been a formal determination of the children’s best interest
that would qualify as a “final” order.4 Hence, the interim order was
temporary in name only. It carried the same force as a final custody order
for approximately one and one-half years. Accordingly, we find that even an
ostensibly temporary order granting the modification of physical custody
____________________________________________
4
This case has utterly defied our Supreme Court’s desire to resolve child
custody issues promptly. Compare the above-referenced procedural history
with Pa.R.C.P. 1915.12(b) and (c) regarding the prompt disposition of
custody cases (generally trial should be scheduled within 180 days of the
custody complaint and trial shall commence within 90 days of the scheduling
order).
- 17 -
J-E01006-17
implicates the Langendorfer Court’s concerns about the evidentiary deficit
where the respondent did not receive particularized notice that custody
would be at issue in a contempt proceeding.
Thus, for all of the foregoing reasons, we hold that absent an award of
special relief under Rule 1915.13, which we discuss infra, it is an abuse of
discretion for the trial court to transfer custody from one party to the other
as a contempt sanction and that custody can be modified only where the
parties receive advance notice that custody is to be an issue at the contempt
hearing and modification is based upon the determination of the child’s best
interest.
Having established the appropriate legal framework, we next address
Mother’s and Father’s countervailing arguments regarding whether Father
satisfied the particularized notice requirements we outlined in
Langendorfer, supra and its progeny. Pursuant to Pa.R.C.P. 1915.12(a), a
contempt petition must include a section entitled “Notice and Order to
Appear.” The rule prescribes the form and content of the notice and order to
appear. Herein, Father’s petition for contempt and special relief requested a
modification of custody, but it lacked the required notice and order to appear
as outlined by Rule 1915.12. A petition for special relief is not analogous to
a motion for modification, which not only implicates a thorough analysis of
the children’s best interest under § 5328(a), but also necessarily provides
express notice that custody would be at issue. As Father neglected to issue
- 18 -
J-E01006-17
the required notice and order to appear, he did not provide Mother notice
that the existing custody order could be modified as a consequence of the
contempt proceedings.5 Moreover, both the original scheduling order that
the trial court issued and its revised order failed to mention custody at all.
Presently, as in Langendorfer, there was no petition to modify
custody before the trial court during the contempt proceedings, Father
neglected to provide the notice and order to appear pursuant to Rule
1915.12(a), and the scheduling orders that the court issued did not disclose
that the trial court would address the matter of physical custody during the
contempt proceeding. While Father included a custody-related prayer for
relief in his contempt petition and the proposed order that he submitted for
____________________________________________
5
We reject Mother’s related assertion that Father’s failure to accomplish
strict compliance with the Pa.R.C.P. 1915.12 notice requirements warrants
overturning the trial court’s contempt finding. It is well-settled that
“procedural due process requires, at its core, adequate notice, opportunity to
be heard, and the chance to defend oneself before a fair and impartial
tribunal having jurisdiction over the case. Everett v. Parker, 889 A.2d 578,
580 (Pa.Super. 2005). Instantly, notwithstanding the procedural defects
that impaired the court’s ability to modify physical custody, Father’s petition
notified Mother that he sought a finding of contempt against her based upon
her relocation with the children to Lancaster. Plainly, Mother does not
contend that Father failed to provide notice of the petition or the evidentiary
hearing. She merely complains that he failed to attach a “Notice and Order
to Appear” pursuant to Rule 1915.12(a). Indeed, Mother appeared with
counsel at the appropriate place and time for the contempt hearing and
vehemently contested Father’s petition. Therefore, Mother’s challenge to the
propriety of the contempt determination based upon the noted defects is
unpersuasive.
- 19 -
J-E01006-17
the court’s approval, Mother was not provided the requisite specific notice in
the contempt petition and the attendant orders directing her to appear that
her custody rights would be at stake. See Everett, supra. Accordingly,
Father’s notice to Mother that he sought to modify the custody arrangement
during the contempt proceedings was deficient, and, absent notice of that
objective, the trial court erred in modifying custody as a contempt sanction.
Finally, we observe that the certified record demonstrates that the trial
court did not intend to issue special relief pursuant to its authority under
Pa.R.C.P. 1915.13. Under appropriate circumstances, a trial court may
modify a custody order temporarily pursuant to Rule 1915.13.6 See
Choplosky, supra at 343, (“‘special relief’ may in some cases be
appropriate (and necessary) where the situation is such that, for example,
temporary modification of custody or visitation rights would preserve the
well-being of the children involved while the parties prepare to resolve more
permanently the question of where and/or with whom the children should
____________________________________________
6
Rule 1915.13 provides as follows:
At any time after commencement of the action, the court may on
application or its own motion grant appropriate interim or special
relief. The relief may include but is not limited to the award of
temporary custody, partial custody or visitation; the issuance of
appropriate process directing that a child or a party or person
having physical custody of a child be brought before the court;
and a direction that a person post security to appear with the
child when directed by the court or to comply with any order of
the court.
- 20 -
J-E01006-17
remain.”); 23 Pa.C.S. § 5323(b) (“The court may issue an interim award of
custody to a party who has standing . . . in the manner prescribed by the
Pennsylvania Rules of Civil Procedure governing special relief in custody
matters.”). However, the trial court did not enter an order to that effect in
the case at bar. In fact, the trial court unquestionably granted Father
shared physical custody as an impermissible sanction for contempt. Indeed,
the court explicitly directed, “[The] appropriate sanction [against Mother] is
to award shared custody until the parties undergo the trial.” Trial Court
Order, 12/24/15, at unnumbered page 7.
Accordingly, for all of the foregoing reasons, we affirm the trial court’s
adjudication of contempt for Mother’s relocation in contravention of the
order directing compliance with § 5337, reverse the finding that Mother was
in contempt for placing B.M. in the preschool of her choice, vacate the
court’s contempt sanction awarding Father shared physical custody, and
remand the matter for the trial court to recalculate its award of attorney fees
in light of our holding. In light of the delays that have plagued this custody
litigation, we direct the trial court to hold the custody hearing expeditiously.
Order affirmed in part, reversed in part, and remanded for further
proceedings. Jurisdiction relinquished.
- 21 -
J-E01006-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2017
- 22 -