J-S21042-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    J.R.                                    :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                 v.                         :
                                            :
    D.D.D.A. AND M.U.                       :
                                            :
    APPEAL OF: D.D.D.A.                     :   No. 1729 WDA 2016

                       Appeal from the Order October 13, 2016
                   In the Court of Common Pleas of Greene County
                     Civil Division at No(s): A.D. No. 785 of 2015

BEFORE:        LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED APRIL 25, 2017

           D.D.D.A. (Mother) appeals from the order entered October 13, 2016,

in the Court of Common Pleas of Greene County, which modified the parties’

child custody arrangement, adjudicated Mother in civil contempt, and

imposed sanctions. We vacate in part and remand for further proceedings

consistent with this memorandum.

           The history of the case relevant to this appeal is as follows. Mother

has three Children: J.P.U., (born in October 2009), B.H.A., (born in May

2013), and G.P.R., (born in July 2015). J.R. (Father) is the biological father

of G.P.R.; he stood in loco parentis to B.H.A. and J.P.U. and had begun the

process of adopting them before he and Mother separated. 1            After the

separation, Father filed a complaint for custody of Children. Pursuant to a




1
  Defendant M.U. is the biological father of J.P.U., and is the purported
father of B.H.A.

*Retired Senior Judge assigned to the Superior Court.
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November 23, 2015 order, Mother and Father shared legal custody of

Children and had alternating weeks of physical custody.

      On June 24, 2016, upon the emergency motion of Mother, the trial

court suspended the November 2015 custody order and awarded custody to

Mother.   Father filed a petition for emergency relief, resulting in the trial

court’s reinstating the November 2015 custody order.      Father then filed a

petition for contempt, and the trial court scheduled a hearing.

      No hearing was held. Instead, the trial court met with counsel and the

parties in chambers.    No record was made of the discussions.      However,

based upon the off-the-record conference, the trial court entered an order

on October 13, 2016, modifying the parties’ child custody arrangement. The

order also included the following provisions.

            This order is made by a negotiated agreement between the
      parties with assistance of counsel after [Mother] admitted to
      being in contempt of prior court orders.

            The court orders [Mother] to thirty days of incarceration
      and now suspends the incarceration sentence subject to her
      continuing compliance with these terms and conditions which the
      court finds to be in the best interest of [C]hildren.

Order, 10/13/2016, at 5 (unnumbered pages) (unnecessary capitalization

omitted).2


2
  This is an appealable final order pursuant to Rhoades v. Pryce, 874 A.2d
148, 151, (Pa. Super. 2008), appeal denied, 899 A.2d 1124 (Pa. 2006)
(quoting Wolanin v. Hashagen, 829 A.2d 331, 332-33 (Pa. Super. 2003))
(explaining that a contempt order imposing a conditional sanction is final,
even though the contemnor can avoid the sanction by satisfying a purge
condition).

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      Mother filed a motion to vacate the order on November 2, 2016, which

the trial court denied that same day. Mother timely filed a notice of appeal

on November 10, 2016.3

      Mother now raises the following issues for our review.

      I. Did the trial court apply the proper procedural standard for
      civil contempt of court proceedings?

      II. Did the trial court apply the proper legal standard for civil
      contempt of court proceedings?

      III. Did the trial court abuse its discretion in finding [Mother] to
      be in civil contempt of court without having a full evidentiary
      hearing?

Mother’s Brief at 2.

      While Mother lists three separate issues in her statement of questions

involved, she presents all three issues together in the argument section of

her brief.   Mother contends that the trial court violated her right to due

process by adjudicating her in civil contempt and imposing sanctions without

conducting a hearing. Mother’s Brief at 5-11.

      We consider Mother’s claim mindful of our well-settled standard of

review.

3
  Mother failed to file a concise statement of errors complained of on appeal
at the same time as her notice of appeal pursuant to Pa.R.A.P. 905(a)(2)
and 1925(a)(2)(i). The trial court ordered Mother to file a concise statement
within twenty-one days on November 17, 2016, and Mother timely complied
by filing a concise statement on November 21, 2016. We have accepted
Mother’s concise statement pursuant to In re K.T.E.L., 983 A.2d 745, 748
(Pa. Super. 2009) (holding that the appellant’s failure to comply strictly with
Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver of her claims, as there was
no prejudice to any party).

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            When we review a trial court’s finding of contempt, we are
      limited to determining whether the trial court committed a clear
      abuse of discretion. This Court must place great reliance on the
      sound discretion of the trial judge when reviewing an order of
      contempt. This [C]ourt also has stated that each court is the
      exclusive judge of contempts against its process.

G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (citations and quotation

marks omitted).

      This Court has explained the elements of civil contempt, as well as the

necessary procedural due process protections, as follows.4

      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. Furthermore, [w]hen holding a person in civil contempt,
      the court must undertake (1) a rule to show cause; (2) an
      answer and hearing; (3) a rule absolute; (4) a hearing on the
      contempt citation; and (5) an adjudication of contempt.

Epstein v. Saul Ewing, LLP, 7 A.3d 303, 318 (Pa. Super. 2010), appeal

denied, 20 A.3d 1212 (Pa. 2011) (citations and quotation marks omitted).

“Fulfillment of all five factors is not mandated, however. [T]he essential due

process requisites for a finding of civil contempt are notice and an




4
  There is no dispute that the trial court adjudicated Mother in civil, rather
than criminal, contempt. See Warmkessel v. Heffner, 17 A.3d 408, 414
(Pa. Super. 2011) (quoting Stahl v. Redcay, 897 A.2d 478, 486 (Pa. Super.
2006)) (“The purpose of a civil contempt proceeding is remedial. Judicial
sanctions are employed to coerce the defendant into compliance with the
court’s order, and in some instances, to compensate the complainant for
losses sustained.”).

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opportunity to be heard.”    Harcar v. Harcar, 982 A.2d 1230, 1235 (Pa.

Super. 2009) (citations and quotation marks omitted).

      Here, it is clear that the trial court violated Mother’s right to due

process by adjudicating her in civil contempt and imposing sanctions without

a hearing.   In its opinion, the trial court indicates that a hearing was not

necessary, because Mother “admitted to the Court of being in contempt of

prior Court Orders” during the pre-hearing conference on October 11, 2016.

Trial Court Opinion, 12/7/2016, at 4 (unnumbered pages).

      The trial court’s position finds no support in our law. Absent a hearing,

this Court has no way of reviewing the record and ensuring that the

evidence supports a finding of contempt.         In addition, Mother has no

opportunity to cross-examine witnesses, present testimony, and defend her

actions. See Epstein, 7 A.3d at 318 (“Appellees never received a hearing

on the contempt citation. Thus, Appellees were not given an opportunity to

establish why they did not act with wrongful intent when they refused to

provide Ms. Kanter with financial information after the jury absolved them

from liability for punitive damages.”).

      Accordingly, we vacate the portion of the October 13, 2016 order

adjudicating Mother in civil contempt and imposing sanctions, and we

remand this case for the trial court to conduct a hearing on J.R.’s petition for

contempt.




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     Order vacated in part.      Case remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 4/25/2017




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