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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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