J-S11031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.C.Y., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
:
J.A.Y., :
:
Appellant : No. 1465 MDA 2014
Appeal from the Order entered on August 22, 2014
in the Court of Common Pleas of York County,
Civil Division, No. 2011 FC 000573-03
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 09, 2015
J.A.Y. (“Mother”) appeals from the Order finding Mother in contempt of
the Custody Order and sanctioning her in the amount of $14,250. We affirm
in part and vacate in part.
Mother and T.C.Y. (“Father”) were married in 1998 and had a
daughter, J.R.Y. (“Child”), in 1998. The parties separated on March 29,
2011, and eventually divorced on August 26, 2013. On May 4, 2011, the
trial court entered an agreed-upon Custody Order awarding both parents
shared legal custody, Mother primary physical custody, and Father partial
physical custody.
On May 24, 2011, Father filed a Petition for Modification and
Contempt. On July 6, 2011, the trial court entered an Interim Order, which
stated that the Custody Order would be modified to provide that the parties
must attend family counseling to better communicate with one another over
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the custody issues. On December 15, 2011, the trial court entered an Order
reinstating the May 4, 2011 Custody Order. Father filed an Amended
Petition for Modification and Contempt, but subsequently withdrew the
Amended Petition.
On December 6, 2012, Father filed a “Third Petition for Contempt.”
Following a hearing, the trial court denied Father’s Petition. On September
13, 2013, Father filed another Petition for Contempt seeking to remove a
block on Child’s cellphone. The trial court entered an Order directing Mother
to remove the block, but made no contempt findings.
On June 10, 2014, Father filed the Petition for Contempt at issue in
this case. Father objected to Mother’s proposed relocation from the Central
York School District to the York Suburban School District upon the sale of
the marital residence. Father, who lives in the York Suburban School
District, sought for Mother to be found in contempt and ordered to remain in
the Central York School District.1 The trial court held a hearing at which
Mother, Father, and Child testified. Based upon the evidence presented at
the hearing, the trial court found Mother in contempt for failing to discuss
with Father the consequences of the move. The trial court directed that
Child remain in the Central York School District, and also awarded Father
counsel fees in the amount of $1,500.00. The trial court held a second
hearing to address the payment of tuition for the Central York School
1
Child was entering her junior year in high school for the 2014-2015 school
year.
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District.2 On August 22, 2014, the trial court entered an Order sanctioning
Mother by directing her to pay the total cost of tuition for Child’s remaining
two years of high school, $14,250.00.3 The trial court also suspended
Mother’s rights to legal custody and granted Father sole legal custody.
Mother filed a timely Notice of Appeal and a Pennsylvania Rule of
Appellate Procedure 1925(b) Concise Statement. The trial court issued an
Opinion.
On appeal, Mother raises the following questions for our review:
1. Did the trial court err in finding Mother to be in contempt?
2. Did the trial court err in deciding that [] [C]hild should attend
Central York High School within the context of the contempt
hearing?
3. Did the trial court err in directing Mother to pay the cost of
tuition in full for [] [C]hild to attend Central York High School?
4. If such cost is to be paid, should it be allocated between the
parties in proportion to their net income[,] in conformity with
Pa.R.C.P. No. 1910.16-6(d)?
2
The Pennsylvania Department of Education (“PDE”) allows a student living
in a neighboring public school district to attend the Central York School
District by paying tuition. The PDE sets an annual tuition rate for each
school district by calculating the amount the Central York School District
pays to a charter school for each resident student who attends the charter.
Central York High School charges a non-resident student’s parents this
amount to attend the school.
3
The trial court ordered Father to pay the tuition expenses, but allowed him
to deduct the entire tuition expenses from the spousal support he owed
Mother. N.T., 8/19/14, at 46. The trial court mandated that Father’s child
support payments shall not change despite the change in spousal support.
Id. at 47.
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5. Did the trial court err in modifying the legal custody aspect of
the underlying custody order within the context of the
contempt hearing, granting Father sole legal custody?
Brief for Appellant at 3.
Preliminarily, Mother contends that after finding her in contempt
following the July 7, 2014 hearing, the trial court failed to enter a Contempt
Order on the record. Id. at 16. Mother argues that the failure to enter such
an order violates Pennsylvania Rule of Appellate Procedure 108, Date of
Entry of Orders, and Pennsylvania Rule of Civil Procedure 236, Notice by
Prothonotary of Entry of Order or Judgment. Brief for Appellant at 16-
17.
At the July 7, 2014 hearing, the trial court stated that Mother was in
contempt of the Custody Order and awarded Father attorneys’ fees. N.T.,
7/7/14, at 54. While the trial court did not enter an order on the record to
this effect, Mother paid the attorneys’ fees. N.T., 8/19/14, at 4. Thereafter,
the trial court held a separate hearing on the cost of tuition, wherein it again
stated that Mother was in contempt of the Custody Order. Id. at 42-43.
The trial court then entered an Order, on August 22, 2014, directing Mother
to pay Child’s tuition costs as a sanction for the finding of contempt. Order,
8/22/14. Mother filed an appeal from this Order. See Glynn v. Glynn, 789
A.2d 242, 246 (Pa. Super. 2001) (stating that “[a]n order finding a party in
contempt for failure to comply with a prior order of court is final and
appealable if sanctions are imposed.”). While the trial court failed to enter
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an Order following its July 7, 2014 finding of contempt, Mother was on notice
of the contempt finding and paid the attorneys’ fees resulting from this
finding. Further, the trial court had not entered all of its sanctions until the
August 22, 2014 Order. Thus, as the August 22, 2014 Order was the final
pronouncement on the matter, we will allow this appeal to proceed. See
id.; see generally Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141,
1144 n.1 (Pa. Super. 2013) (stating that “in the interests of justice and to
promote judicial economy[,] an appellate court may regard as done that
which ought to have been done and proceed in the matter.”) (citation and
quotation marks omitted).
When considering an appeal from an order holding a party
in contempt for failure to comply with a court order, our scope of
review is narrow: we will reverse only upon a showing the court
abused its discretion. We also must consider that:
Each court is the exclusive judge of contempts against its
process. The contempt power is essential to the
preservation of the court’s authority and prevents the
administration of justice from falling into disrepute. When
reviewing an appeal from a contempt order, the appellate
court must place great reliance upon the discretion of the
trial judge.
The court abuses its discretion if it misapplies the law or
exercises its discretion in a manner lacking reason. Additionally,
in proceedings for civil contempt of court, the general rule is that
the burden of proof rests with the complaining party to
demonstrate, by a preponderance of the evidence[,] that the
defendant is in noncompliance with a court order. However, a
mere showing of noncompliance with a court order, or even
misconduct, is never sufficient alone to prove civil contempt.
Moreover, we recognize that:
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To sustain a finding of civil contempt, 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 constituting the
contemnor’s violation was volitional; and (3) that the
contemnor acted with wrongful intent.
Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013) (citations, brackets,
and quotation marks omitted); see also Williams v. Williams, 681 A.2d
181, 183 (Pa. Super. 1996) (stating that in an appeal from a contempt
order, “we are confined to a determination of whether the facts support the
trial court’s decision.”).
In her first claim, Mother contends that the trial court abused its
discretion in finding her to be in contempt of the Custody Order. Brief for
Appellant at 16. Mother argues that Father did not prove the three elements
required to sustain a finding of civil contempt. Id. at 17. Mother asserts
that while she had notice of the Custody Order, Father did not demonstrate
that she disobeyed the legal custody language of the Order, or that she
acted with wrongful intent. Id. at 17-22. Mother claims that she did not
enroll Child in York Suburban School District and that she would not do so
unless authorized by the trial court. Id. at 18. Mother also argues that she
sent letters to Father detailing the sale of the marital home (a joint decision
of the parties) in January 2014. Id. at 19, 22. Mother points out that
Father did not want to live in the Central York School District and that he
would not agree to have Child attend that school if he had to pay tuition.
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Id. at 21. Mother asserts that the trial court improperly held her to be in
contempt for moving out of the Central York School District. Id. at 21-22.
The Custody Order states the following, in relevant part:
LEGAL CUSTODY – The parties shall have shared “legal custody”
of the child as that phrase is defined in the Custody Act. Legal
custody means the rights of both parents to control and to share
in making decisions of importance in the life of their child,
including but not limited to educational, medical and religious
decisions. The parents shall make these decisions jointly, after
discussion and consultation with one another and with a view
toward obtaining and following a harmonious policy in the child’s
best interests.
Order, 5/4/11, at 2.4
Here, Mother listed the marital home, which was located in Central
York School District, for sale in January 2014 and subsequently moved to a
home in the York Suburban School District. N.T., 7/7/14, at 19. Mother
planned on enrolling Child in York Suburban School District for the 2014-
2015 school year. Id. at 20. Mother sent a letter to Father’s counsel to
inform Father of the move; however, Mother did not discuss with Father the
fact that Child would have to change school districts as a result of the move.
Id. at 25. In response, Father sent Mother three letters stating that he was
not in agreement with Mother’s decision to change Child’s school district.
Id. at 21-22; see also id. (wherein Mother admitted to receiving Father’s
letters). Father stated that he never conferred with Mother regarding
Mother’s decision to enroll Child in a new school district. Id. at 44-45.
4
As noted above, the Custody Order entered on May 4, 2011 was the Order
in effect until the trial court entered the Order at issue in this appeal.
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Based upon this evidence, the trial court found that Mother was in contempt
of the Custody Order because she “willfully, knowingly, and deliberately”
failed to communicate with Father regarding Child’s educational needs. See
N.T., 8/19/14, at 42-43; see also N.T., 7/7/14, at 55.
We conclude that the trial court did not abuse its discretion in making
this finding, as the evidence demonstrates that Mother was aware of the
Custody Order and Mother knowingly failed to discuss the educational needs
of Child with Father. See Mrozek v. James, 780 A.2d 670, 673 (Pa. Super.
2001) (concluding that there was no error in the trial court’s contempt
finding where the factual findings were supported in the record). Mother’s
argument that she should not be held in contempt because she had not yet
enrolled Child in York Suburban High School is without merit. Indeed,
Mother specifically stated that she intended to enroll Child in York Suburban
School District for the 2014-2015 school year. N.T., 7/7/14, at 20. Thus,
Mother’s first claim is without merit.
In her second claim, Mother contends that the trial court erred by
ordering that Child remain in Central York High School in the context of the
contempt hearing. Brief for Appellant at 22. Mother argues that Father did
not make such a request in his Petition for Contempt. Id. at 22-23, 26.
Mother also asserts that the trial court’s order erroneously modified the
Custody Order through the contempt petition by mandating that Child
remain in Central York High School. Id. at 23-26. Mother claims that a
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change of schools requires the consideration and application of the factors
listed at 23 Pa.C.S.A. § 5328(a). Brief for Appellant at 25-26.
Here, Father’s Petition for Contempt explicitly requested that the trial
court “prevent[] Mother from removing the child from the Central York
School District and compel[] her to either remain in the [marital] residence
or to rent an alternative residence within the Central York School District for
the balance of [Child’s] high school academic experience.” Petition for
Contempt, 6/10/14, at 4 (unnumbered); see also id. at 5 (unnumbered)
(requesting that the trial court “order Mother to remain in Central York
School District for the balance of [Child’s] educational experience …).
Father’s Petition for Contempt did not request a change in physical or legal
custody, but instead sought to continue Child’s attendance at Central York
High School. See id. at 4-5 (unnumbered). The trial court considered the
best interests of Child in determining that the parties should maintain the
status quo, and ordered that Child should continue to attend Central York
High School. See N.T., 8/19/14, at 43 (stating that Child should continue at
Central York High School because she wanted to attend that high school due
to her success at the school); N.T., 7/7/14, at 55-56; see also N.T., 7/7/14,
at 13 (wherein Child testified that she would have preferred to stay in the
Central York School District). Thus, the trial court’s directive that Child
continue attending Central York High School did not change the Custody
Order, and a review of the section 5328(a) factors was not required. See
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S.W.D. v. S.A.R., 96 A.3d 396, 403 (Pa. Super. 2014) (stating that while
courts must always consider the best interests of the child, “the § 5328(a)
factors were designed to guide the best-interest analysis when a trial court
is ordering which party has the right to a form of custody.”) (emphasis
omitted). Based upon the foregoing, Mother’s second claim is without
merit.5
In her third claim, Mother contends that the trial court erred in
ordering her to pay Child’s total cost of tuition as a sanction. Brief for
Appellant at 26. Mother argues that she is being punished for moving out of
the Central York School District. Id. at 26-27, 28. Mother asserts that the
sanction was punitive and did not compensate Father for losses resulting
from her contempt. Id. at 27, 28, 30. Mother further claims that the trial
court, in imposing this sanction, did not provide her with a means of purging
the contempt, i.e., avoiding the tuition payments by moving back to the
Central York School District. Id. at 29-30.
5
We note that the evidence would have supported placement of Child in the
York Suburban School District. Indeed, Child testified that she would not
have a problem going to York Suburban High School. N.T., 7/7/14, at 7.
Further, both parties testified regarding the difficulty of Child getting to
Central York High School from her parents’ homes in the York Suburban
School District. N.T., 8/19/14, at 6-8, 23-29; see also id. at 37 (stating
that Child could walk to school if she attended York Suburban High School
from Mother’s new home). However, based upon our standard of review and
the relevant factual findings, we cannot conclude that the trial court abused
its discretion in ordering that Child remain in Central York High School. See
Habjan, 73 A.3d at 637; Williams, 681 A.2d at 183.
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Relatedly, in her fourth claim, Mother contends that the tuition should
have been allocated between Mother and Father in proportion to their net
incomes. Id. at 30, 32. Mother argues that under Pa.R.C.P. 1910.16-6(d),
private school tuition can be divided between the parties, as long as the
need for private school is reasonable. Id. at 31-32. Mother claims that
under Rule 1910.16-6(d), Father should pay 77% of the tuition expenses.
Id. at 32.
“Sanctions for civil contempt can be imposed for one or both of two
purposes: to compel or coerce obedience to a court order and/or to
compensate the contemnor’s adversary for injuries resulting from the
contemnor’s noncompliance with a court order.” Mrozek, 780 A.2d at 674.
Such fines are not punitive and may be purged if the defendant chooses to
comply. Id. The defendant must always have the “key to the jailhouse
door” in regard to such fines; they must not be unconditional. Gunther v.
Bolus, 853 A.2d 1014, 1018 (Pa. Super. 2004).
As noted above, the trial court found that Mother willfully and
knowingly moved out of Central York School District without consulting
Father about the impact on Child’s educational needs, as required under the
Custody Order. Further, the trial court found that it was in the best interests
of Child to remain in Central York School District. See N.T., 8/19/14, at 43;
N.T., 7/7/14, at 55-56; see also S.W.D, 96 A.3d at 403 (stating that courts
must always consider the best interest of the child). Due to the fact that
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Mother’s contemptuous conduct caused the tuition expense, the trial court
refused to allow Father to suffer financially and ruled that Mother would be
responsible for the entire amount. See N.T., 8/19/14, at 43-44, 45; see
also Trial Court Opinion, 9/18/14, at 3-4. However, the trial court stated
that Mother would not have to pay tuition if she lived in the Central York
School District. N.T., 8/19/14, at 10. As there is support for the trial court’s
findings in the record, we conclude that the trial court did not abuse its
discretion by imposing sanctions in the form of tuition payments on Mother.
See Mrozek, 780 A.2d at 674 (stating that sanctions are proper elements of
a civil contempt order where they are coercive and compensatory).
Furthermore, as a result of this conclusion, we need not further address
Mother’s claim regarding the division of tuition expenses under Rule
1910.16-6(d). Thus, Mother’s third and fourth claims are without merit.6
In her fifth claim, Mother contends that the trial court improperly
modified the legal custody aspect of the Custody Order within the context of
the Petition for Contempt. Brief for Appellant at 32. Mother argues that the
trial court’s action violated her right to due process because Father never
sought such a custody modification. Id. at 33. We agree.
6
We note that Mother does not argue that she is unable to make the tuition
payments. See Childress v. Bogosian, 12 A.3d 448, 465 (Pa. Super.
2011) (stating that after a court has found a defendant in contempt of a
court order and imposed sanctions, “[t]he alleged contemnor may then
present evidence that he has the present inability to comply and make up
the arrears.”). As Mother does not set forth any claim that she is unable to
pay the sanction, we need not address Mother’s ability to comply with the
contempt and sanction Order.
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This Court has repeatedly held that a contempt proceeding cannot be
converted into a custody modification proceeding without proper notice and
due process. See, e.g., G.A. v. D.L., 72 A.3d 264, 270 (Pa. Super. 2013)
(concluding that the trial court abused its discretion where it modified
custody by reinstating a previous order notwithstanding that father, in his
petition for contempt, never sought a custody modification); P.H.D. v.
R.R.D., 56 A.3d 702, 706-07 (Pa. Super. 2012) (concluding that the trial
court abused its discretion by modifying custody where the contempt
petition did not seek such relief and father had no notice of the prospect of
custody modification); Langendorfer v. Spearman, 797 A.2d 303, 308-09
(Pa. Super. 2002) (holding that the trial court violated the father’s due
process rights in modifying legal and physical custody of a child where the
contempt petition did not seek a change in the parties’ custodial
arrangement and there was no prehearing notice that the issue of custody
would be considered at the contempt hearing).
Here, Mother was not afforded notice that the trial court would
consider modification of the Custody Order and possibly impinge upon her
custody rights. Father’s Petition for Contempt made no request for a change
in custody, and no prehearing notice regarding custody was provided.
Father only sought Mother’s compliance with the existing Custody Order and
a request that Child continue her education at Central York High School.
Petition for Contempt, 6/10/14, at 4-5 (unnumbered). Additionally, there
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was no indication in the certified record that the trial court would review the
legal custody provisions of the Custody Order. The trial court merely stated
that Mother would lose her legal custody rights at the end of the August 19,
2014 hearing, and did not provide Mother with any chance to respond to this
action. N.T., 8/19/14, at 47.
In accordance with our decisions in G.A., P.H.D., and Langendorfer,
we conclude that the trial court violated Mother’s right to due process in
stripping away Mother’s legal custody rights under the Custody Order during
the contempt proceeding, as custody modification is unequivocally not a
sanction for contempt.7 We stress that the reason for the particularized
notice requirements is so that Mother may prepare to litigate that dispute
during the contempt proceedings, and the trial court may have the benefit of
both parties’ well-prepared evidence under section 5328(a) and
countervailing legal arguments. See P.H.D., 56 A.3d at 707 (stating that
“[n]otice, in our adversarial process, ensures that each party is provided
adequate opportunity to prepare and thereafter properly advocate its
position, ultimately exposing all relevant factors from which the finder of fact
7
We note that the trial court states that this case is distinguishable from
Langendorfer because the court did not alter “Mother’s rights of physical
custody[,] but rather addressed her rights of legal custody.” Trial Court
Opinion, 9/18/14, at 4. A plain reading of the Langendorfer decision
reveals that this Court addressed a situation wherein the court changed both
physical and legal custody in response to a contempt petition.
Langendorfer, 797 A.2d at 304-05. As noted above, this Court has
repeatedly stated that courts may not modify custody in the context of a
contempt petition/hearing where modification is not at issue.
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may make an informed judgment.”).8 If Father wishes to pursue custody
modification, he must petition the court accordingly and provide proper
notice. Thus, we vacate that portion of the Contempt Order granting sole
legal custody to Father.
Accordingly, we affirm the Order to the extent that it finds Mother in
contempt, requires Child to remain in Central York High School, and requires
Mother to pay tuition expenses. We vacate that part of the Order granting
Father sole legal custody.
Order affirmed in part and vacated in part. Jurisdiction relinquished.
8
We note that Pennsylvania Rule of Civil Procedure 1915.13, which is
generally reserved for emergency situations, authorizes a court to grant
interim, special relief either on application of a party or sua sponte. See
Pa.R.C.P. 1915.13 (stating that court may, on application or sua sponte,
grant interim or special relief including, inter alia, an award of temporary
custody); see also Steele v. Steele, 545 A.2d 376, 378 (Pa. Super. 1988)
(stating that Rule 1915.13 allows the court, “under appropriate
circumstances[,] to alter a custody/visitation Order when it is in the best
interest of the child to do so ... [r]ecognizing that circumstances may change
abruptly….”). While the rule may be invoked to provide “special relief” in a
contempt setting where emergency changes in circumstances require an
interim alteration in custody to safeguard the child’s best interests, the rule
is not available to override basic due process protections or fundamental
parental rights. Here, the trial court never cited Rule 1915.13, and makes
no time limitation to the Order. Rather, the trial court’s Order was made
enforceable “until further order of court.” Order, 8/22/14, at 3; N.T.,
8/19/14, at 47. Nothing in the transcript of the hearing on August 19, 2014,
indicates that the trial court was making a modification of custody for any
reason other than as a punishment for Mother’s contempt. As the trial court
never invoked Rule 1915.13, and the change in custody was not made under
emergency circumstances, the rule is inapplicable in this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/2015
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