J.M. v. K.W.

J-A14036-16

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M., 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

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- 523 -2014

BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 24, 2016

K.W. (Mother) appeals from the order of the Court of Common Pleas of

Schuylkill County (trial court), entered December 24, 2015. The order

grants the petition for sanctions and special relief filed by J.M. (Father). The

court awarded Father counsel fees and interim shared legal and physical

custody of their son, B.M., born in May of 2011, and their daughter, V.M.,

born in November of 2012 (Children), where Mother previously had

exercised primary physical custody. We affirm in part, reverse in part,

quash in part, and remand for the recalculation of the attorney fees award.

Father filed a complaint in custody on March 20, 2014. On March 21,

2014, in open court, the parties entered into a stipulated order of temporary

* Retired Senior Judge assigned to the Superior Court.
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custody of the Children that provided Mother primary physical custody and

established a schedule of partial physical custody for Father.

Several scheduling orders were entered that specifically prohibited

relocation, including the March 25, 2014 order scheduling the custody

conference. (See Order, 3/25/14). On April 25, 2014, Mother filed a

counterclaim to the custody complaint and a notice of proposed relocation in

which she proposed to relocate the Children from her current residence in

Pottsville, Schuylkill County, to Lancaster, Lancaster County. Father filed a

counter -affidavit objecting to Mother's proposed relocation. On April 30,

2014, the court ordered a custody and home evaluation be completed by

Joseph B. Sharis, Ph.D. Dr. Sharis recommended that the parties share

custody. (See Report of Custody Conciliation Conference, 12/01/14, at

unnumbered page 2).

Father filed a petition for special relief and contempt in which he

asserted that Mother had relocated to Lancaster, Pennsylvania, without trial

court permission, that she was cohabitating with a male paramour, and

refuses to agree to the Children's school enrollment. (See Petition for

Special Relief and Contempt, 9/23/15, at unnumbered pages 1 -2). The

court held a hearing on December 8, 2015. Evidence presented at that

hearing established that Mother had relocated to Lancaster, (see N.T.

Hearing, 12/08/15, at 57, 98 -99); was in a relationship with another man,

(see id. at 9 -12); and had enrolled B.M. in a preschool without Father's

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knowledge or consent, (see id. at 103). Based on that evidence, the trial

court, on December 24, 2015, entered an interim order of custody granting

shared legal and physical custody to the parties, and granting Father's

request for attorney fees.'

Mother filed her timely notice of appeal and statement of errors

complained of on appeal on January 12, 2016. See Pa.R.A.P. 1925(a)(2)(i).

The trial court entered an opinion on January 26, 2016. See Pa.R.A.P.

1925(a).

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

' In his petition, Father also asked the trial court to require Mother to pay
the cost of a private detective. The trial court denied that request. Father
asked for, and the trial court granted reconsideration of that denial. The
issue of the cost of the private detective is therefore not before us.

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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
[B.M.] 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
[B.M.] 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
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).2

We first consider whether this appeal is properly before us. It is well -

settled that an order that includes a present finding of contempt and the

imposition of sanctions is immediately appealable. See Stahl v. Redcay,

897 A.2d 478, 487 (Pa. Super. 2006), appeal denied, 918 A.2d 747 (Pa.

2007). However, "a custody order will be considered final and appealable

only if it is both: 1) entered after the court has completed its hearings on

the merits; and 2) intended by the court to constitute a complete resolution

2 Unnecessary capitalization removed.

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of the custody claims pending between the parties." G.B. v. M.M.B., 670

A.2d 714, 720 (Pa. Super. 1996) (footnotes omitted).3

In this case, the December 24, 2015 order included a finding of

contempt against Mother and the imposition of sanctions. (See Order,

12/24/15, at unnumbered page 8). We conclude that Mother's questions

about whether the court properly found her in contempt are properly before

us. See Stahl, supra at 487. However, because an interim custody order

is not immediately appealable, any challenge to the court's temporary

custody award is not properly before us because the court, at the time of

entering those terms, contemplated that they were not final, but only

intended as a temporary solution pending the custody trial. (See Trial Court

Order, 12/14/15, at unnumbered page 7 ( "[T]he parties have a pending

custody trial. . . . An appropriate sanction is to award shared custody until

the parties undergo trial. "); see also G.B., supra at 720. Therefore, we

quash that portion of Mother's appeal that challenges the interim custody

order. See Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super.

1996) ( "We must quash that portion of the appeal which concerns spousal

3 In a situation such as the one before us, a trial court has the inherent
power to issue an interim order of custody. See Pa.R.C.P. 1915.13 ( "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 legal or physical
custody[.] ...
") (emphasis added).

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support[]" pending final divorce decree.). We will consider Mother's first

three issues because they challenge the court's contempt findings.

It is well -settled that:

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. On appeal from a court's
order holding a party in contempt of court, our scope of review is
very narrow. We are limited to determining whether the trial
court committed a clear abuse of discretion.

Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001) (quotation marks and

citations omitted).

The gravamen of Mother's first issue is that she was not given proper

notice of the contempt hearing and an opportunity to be heard. (See

Mother's Brief, at 22 -31). This issue does not merit relief.

It is well -settled that "[p]rocedural 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." Garr,

supra at 191 (citations and internal quotation marks omitted).
In this case, Father's petition for special relief and contempt contained

clear and unambiguous language stating why he sought a finding of

contempt and the relief he requested. The first page of Father's petition is a

proposed order of court that provides:

1. [Father] is granted primary custody until further order of
court;

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2. the minor children shall be enrolled in school within the school
district in which [Father] resides;

3. [Mother] shall pay all attorney fees and costs [Father]
incurred with respect to [Mother] relocating, including any
expense to establish [Mother's] relocation, any filing fees for
[Father's] [p]etition, and any attorney fees and costs [Father]
incurred to establish [Mother's] relocation or to litigate the issue
of [Mother] relocating.

4. [Father] shall provide [Mother] a statement of all fees and
costs [Father] incurred in establishing [Mother's] relocation,
which fees and costs [Mother] shall pay to [Father] within thirty
(30) days thereafter.

5. Neither party shall subject the children to persons they are
romantically interested in until a final [o]rder of custody is
entered and the other parent is informed of the identity of the
romantic interest.

(Petition for Special Relief and Contempt, 9/23/15, at attached Order of

Court). In addition, paragraph six of Father's petition put Mother on notice

that he was seeking a finding of contempt, the reason for his request, and

the remedy he sought. Paragraph six states:

6. As Mother has relocated without Father's knowledge or
consent, Father seeks a finding of contempt or that Mother is
otherwise in violation of the Relocation Statute; an order that
Father is granted primary physical custody, or equally shared
physical custody if Mother returns to Pottsville, until further
order of court, and an award of attorney fees and costs.

(Id. at unnumbered page 2 ¶ 6).

Father's petition was sufficient to put Mother on notice that he sought

a finding of contempt for her relocation and the sanctions he sought for that

contempt. In fact, as observed by the trial court, "the record evidences

[Mother] appeared [at the hearing] and with assistance of [c]ounsel

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vigorously contested Father's [p]etitions." (Order and Opinion of Court,

1/26/16, at unnumbered page 2). Therefore, Mother's first issue, that she

did not receive proper notice and an opportunity to be heard, lacks merit.

See Garr, supra at 191.

In her second issue, Mother maintains that the trial court erred and

abused its discretion when it found that she was in contempt for improperly

relocating when she moved from Schuylkill County to Lancaster County.

(See Mother's Brief, at 31-38). This issue lacks merit.

"To be in contempt, a party must have violated a court Order, 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).

Here, as the trial court observed, the scheduling orders in Schuylkill

County expressly state: "No relocation shall occur without compliance with

the obligation set forth in Pennsylvania's custody statute at 23 Pa.C.S.[A. §]

5337." (Trial Court Order, 12/24/15, at unnumbered page 3; see, e.g.,

Order, 3/25/14). Section 5337 of the Custody Act provides, in pertinent

part, 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.

See 23 Pa.C.S.A. § 5337(c), (d)(1). Further, "[n]o relocation shall occur

unless . . . the court approves the proposed relocation[]" after an expedited

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hearing on the matter. 23 Pa.C.S.A. § 5337(b)(2); see 23 Pa.C.S.A. §

5337(g)(1)

In this case, the March 25, 2014 scheduling order expressly stated, in

bold letters, that no party may relocate without complying with the

mandates of section 5337 of the Custody Act. (See Order, 3/25/14, at 1).

In compliance with section 5337(c) of the Act, Mother provided notice to

Father of her intention to relocate to Lancaster County. (See Notice of

Proposed Location, 4/25/14). Thus, it appears that Mother was fully aware

that a move from her then -residence in Schuylkill County to Lancaster

County was a relocation. However, in contravention of the March 25, 2014

order's express language that she comply with the entirety of section 5337,

Mother relocated before the trial court approved her relocation proposal. As

observed by the trial court:

. . . [I]t
appears that although [Mother] was following the
[C]ustody [A]ct in filing a notice of proposed relocation, she
ultimately grew impatient with the delay in the custody trial and
elected to move before that issue was heard by the court.
Further[,] the credible evidence is that she denied relocating at
recent support proceedings. It appears that she took great pains
to conceal that she had moved. She implied during the hearing
that her address was to remain "confidential." . . .

[Mother's] actions are completely contrary to the proper
and orderly resolution of the pending custody matter. [Mother]
followed the appropriate steps in filing the notice of intent to
relocate. [Father] filed a timely objection. The parties have
undergone evaluations and a custody trial is scheduled. With
this matter pending, [Mother] chose to relocate. She was . . .

attempting to conceal her "new" address.

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As such, despite her counsel's arguments that her actions
do not constitute "relocation" and further that she has failed to
comply with any court order, [Mother] is in contempt.
(Trial Court Order, 12/24/15, at unnumbered pages 6-7).

We agree with the trial court's finding that Mother was in contempt for

failing to comply fully with the express terms of the scheduling orders. See

23 Pa.C.S.A. § 5337(b)(2). For her to argue now that she was not in

violation of a court order because her move from Schuylkill to Lancaster

County is not a relocation is disingenuous at best where she, herself, filed

notice of her intent to relocate. (See Notice of Proposed Relocation,

4/25/14). Therefore, we conclude that the trial court did not err or abuse its

discretion when it found Mother in contempt for violating the court's order by

relocating prior to obtaining court approval. See Hopkins, supra at 655;

Garr, supra at 189. Mother's second issue is without merit.

In her third issue, Mother complains that the trial court abused its

discretion when it found that she was in contempt for enrolling B.M. in

preschool without Father's knowledge or permission. (See Mother's Brief, at

43-44). In support of her claim, Mother notes that none of the orders

entered prior to Father's filing of his petition for contempt mentioned legal

custody, let alone who will exercise it. (See id.).

Pursuant to the Custody Act, "legal custody" is defined as "[t]he right

to make major decisions on behalf of the child, including, but not limited to,

medical, religious and educational decisions." 23 Pa.C.S.A. § 5322.

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Here, our review of the certified record confirms that there was no

court order in place addressing legal custody generally, or the educational

decisions regarding B.M., specifically. Therefore, Mother was not in

contempt of any court order when she placed B.M. in daycare. Accordingly,

we are constrained to conclude that the trial court abused its discretion

when it found Mother in contempt for placing B.M. in daycare. See

Hopkins, supra at 655; Garr, supra at 189. Hence, we reverse the court's

order to the extent it finds Mother in contempt for enrolling B.M. in

preschool.

Finally, we observe that our disposition in this matter affects the

amount of counsel fees to which Father is entitled. Although the custody

order grants Father a total of $2,214.00, it is unclear what portion of that

amount was incurred for the childcare issue, and how much is attributable to

the issue of Mother's unauthorized relocation. Therefore, we remand for the

re- calculation of Father's counsel fees award.

In sum, we affirm the trial court's order to the extent that it found

Mother in contempt for relocating; reverse the court's order finding Mother

in contempt for placing B.M. in preschool; and quash that portion of the

appeal that addresses the interim order of shared legal and physical custody.

We remand for re- calculation of attorney fees to which Father is entitled.
J-A14036-16

Order affirmed in part, reversed in part, and quashed in part. Case

remanded for proceedings consistent with this decision. Jurisdiction

relinquished.

Judge Ott joins the Memorandum.

Judge Bowes files a Concurring and Dissenting Memorandum.

Judgment Entered.

J seph D. Seletyn,
Prothonotary

Date: 10/24/2016

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