J.M. v. K.W.

J-E01006-17
2017 PA Super 167

J.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
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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.

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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

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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

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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

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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

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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

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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.”

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“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

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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)

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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.

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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

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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).

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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

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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

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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,

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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

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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

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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).

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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

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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

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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.

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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
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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.

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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.

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J-E01006-17

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/31/2017

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