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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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




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