J-S42009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.D.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.C.M. :
:
Appellant : No. 372 MDA 2017
v. :
:
P.R.G. & D.S.G.
Appeal from the Order Entered January 31, 2017
In the Court of Common Pleas of Franklin County
Civil Division at No(s): 2014-1898
BEFORE: OLSON, MOULTON, JJ., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY OLSON, J.: FILED AUGUST 04, 2017
M.C.M. (“Mother”) appeals from the order entered on January 31,
2017, that granted the petition filed by Appellee, M.D.G. (“Father”), and his
parents, the Intervenor Appellees, in the custody case between him and
Mother (“Intervenors”), to hold Mother in contempt of the trial court’s
custody order that was entered on February 23, 2016. We vacate and
remand.
In its opinion, the trial court set forth the factual background and
procedural history of this appeal as follows:
On June 1, 2016, [Father] and Intervenors filed a Praecipe to
Discontinue the Above Captioned Matter at the Request of the
Petitioner/Intervenors and the Plaintiff/Father, which was
prepared by Attorney James M. Stein. On September 20, 2016,
[Mother] filed a praecipe discharging her attorneys, Mid Penn
J-S42009-17
Legal Services. On December 29, 2016, Attorney Stein filed a
Petition for Civil Contempt for Disobedience of Custody Order on
behalf of [Father] and Intervenors. The court entered a notice
and order to appear on January 4, 2017, which scheduled a
hearing on the matter for January 31, 2017. The hearing was
convened on January 31, 2017, and [Father] and Intervenors
appeared in person, and were represented by Attorney Stein.
[Mother] did not appear. The court heard testimony and entered
an order [] that same day, finding [Mother] in contempt.
On February 13, 2017, Intervenors filed an Entry of Appearance
of Self-Represented Party, as well as a Petition for Civil
Contempt for Disobedience of a Custody Order. The next day,
the court entered [an] order to appear[,] setting a hearing for
March 1, 2017, at 2:30 p.m. On February 28, 2017, [Mother],
through her attorney, Nicole M. Sipe,, Esq., of Mid Penn Legal
Services, filed a Praecipe to Allow [Mother] to Proceed In Forma
Pauperis. Also that day, [Mother] filed a notice of appeal [from
the January 31, 2017 order]. Due to the pending appeal, the
hearing on the second Petition for Civil Contempt for
Disobedience of a Custody Order was not held as scheduled.
Trial Court Opinion, 3/31/17, at 1-2 (some internal italicization and
capitalization omitted).
In her brief on appeal, Mother raises five issues, as follows:
I. Whether the trial court committed an error of law when it
found it had jurisdiction to hold Mother in contempt of a custody
order despite Father and [Intervenors] having discontinued the
underlying custody action[?]
II. Whether the trial court committed an error of law and
deprived Mother of due process when it held a hearing on a
Petition for Contempt for which Mother was not properly served
pursuant to Pa.R.C.P. No. 1915.12(d)[?]
III. Whether the trial court committed an error of law by holding
a hearing on the Petition for Contempt in the absence of Mother
in violation of Pa.R.C.P. No. 1915.12(d)[?]
IV. Whether the trial court erred or abused its discretion when it
found, without proper support in the record, that Mother was in
-2-
J-S42009-17
contempt of an order that had been discontinued and docketed
as such by the Franklin County Prothonotary[?]
V. Whether the trial court committed an error of law by ordering
punishments for contempt that are not authorized under the
exhaustive list of 23 Pa.C.S. § 5323(g)[?]
Mother’s Brief at 2.1
Concerning Mother’s third issue, the trial court stated the following:
[Mother] asserts that this court committed an error of law by
holding a hearing on the Petition for Contempt in which [Mother]
was not present. Based on Pa.R.C.P. 1915.12(d), the court is
constrained to agree. The court is constrained to find that a
remand is necessary to hold a hearing on the petition in which
[Mother] is present. The court had serious concerns regarding
[Mother’s] constant changes of residence and her inability, or
outright refusal, to provide the opposing parties or the court with
an address at which she could be reached. It is that conduct
that caused the hearing to be conducted in her absence. Those
concerns are lessened with her now being represented by Nicole
M. Sipe, Esq., of Mid Penn Legal Services. Therefore, the court
believes [Mother’s] claim is valid on this specific issue.
Trial Court Opinion, 3/31/17, at 4.
As the trial court admittedly erred in holding a hearing on the
contempt petition in the absence of Mother and it requests a remand of the
matter, we will remand the matter to the trial court for further proceedings.
In so doing, we do not reach Mother’s second issue, concerning improper
notice of the hearing to Mother; her fourth issue, whether the record
supports a finding of contempt against Mother; and her fifth issue, whether
the trial court imposed improper punishments for the contempt holding. We
____________________________________________
1
Mother stated her issues somewhat differently in her concise statement.
-3-
J-S42009-17
find, however, that the trial court continued to have jurisdiction over the
underlying custody action and could rule on the contempt petition, as the
court had not granted leave to either party to discontinue the action after
notice to Mother (Pa.R.C.P. 1915.3-1(b)(2)(A)), and there was no written
agreement of the parties to discontinue the custody action in the record
(Pa.R.C.P. 1915.3-1(b)(2)(B)). See Trial Court Opinion, 3/31/17, at 3.
Thus, we reject Mother’s first issue, and find the trial court’s exercise of
jurisdiction over the contempt petition proper.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2017
-4-