J-A22008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

G.J.G, JR.                                    IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

D.E.V.

                         Appellee                  No. 594 MDA 2016


                Appeal from the Order Entered March 15, 2015
               in the Court of Common Pleas of Dauphin County
                    Civil Division at No(s): 2006 CV 2030 CU


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED OCTOBER 21, 2016

      G.L.G., Jr. (“Father”) appeals from the order entered March 15, 2015

in the Dauphin County Court of Common Pleas, which amended a previous

custody order regarding Father and D.E.V.’s (“Mother”) minor child, M.G.

(“Child”), entered by the trial court on November 18, 2011, to require that

(1) Mother’s periods of physical custody of Child be supervised by maternal

grandparents and (2) Mother was not to operate a motor vehicle with Child

as a passenger.    For the reasons that follow, we remand this matter for

further proceedings.

      The pertinent facts and procedural posture of this matter are as

follows.     Mother and Father met in March 2005 and resided together

thereafter.    Child was born in January 2006.      Mother struggled with

prescription pain medication addiction issues, and Mother and Father

separated in May 2006.
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      Following the couple’s separation, Father filed an initial custody action

in May 2006. As a result, on May 10, 2006, the parties entered an agreed

order under which they shared legal custody and Mother had primary

physical custody. In July 2007, the order was modified by agreement as to

the terms of Father’s custodial periods. In January 2009, the parties filed a

stipulation entered as a court order under which they agreed to a schedule

that split physical custody equally.

      In the spring of 2009, with Mother’s previous drug addiction issues

apparently under control, Mother and Father reconciled, and Mother moved

back in with Father.       Over the summer of 2009, however, Mother’s

substance abuse issues resurfaced, and in August 2009, Mother admitted

herself into a treatment facility. Thus began the couple’s second, continuing

separation.

      In September 2009, Father filed a motion to modify custody and a

petition for emergency relief. The trial court entered a temporary order on

September 10, 2009 granting Father primary physical custody and Mother

supervised visitation.   The trial court further granted Father the right to

demand that Mother undergo drug testing. On October 9, 2009, following a

conciliation, the parties entered an agreed order amending the prior orders

to add a provision requiring Mother to continue her counseling program,

including random drug testing.

      On January 27, 2010, Mother filed a petition for special relief seeking

the appointment of a parenting coordinator and an updated custody

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evaluation. Following a telephone conference with the parties, on February

8, 2010, the trial court issued an interim custody order granting the parties

shared legal custody and granting physical custody as agreed by the

parties.1   The trial court also issued orders directing the appointment of a

parenting coordinator and the completion of an updated custody evaluation.

       Following the completion of the custody evaluation, 2 the parties

entered a stipulated custody agreement, which the trial court memorialized

in a custody order on November 18, 2011.3 As part of the agreement, the

parties also stipulated to the following:

       In the event Mother does not maintain her sobriety as
       determined after a drug test and should she not follow through
____________________________________________


1
 Under the parties’ agreement, Father would have Child four days a week
and Mother would have Child for three days a week.
2
  Prior to the occurrence of the custody evaluation, in May 2010, Mother filed
a petition alleging Father was in contempt of the trial court’s order for failing
to participate as directed in the custody evaluation. Mother also sought a
status conference to determine the scope of the parenting coordinator’s
authority. The trial court scheduled separate hearings for the contempt and
parent coordination/custody issues. However, prior to the hearings, the
parties agreed to an interim custody stipulation that mirrored the existing
terms of physical custody and Father agreed to cooperate in the custody
evaluation.
3
  Under the terms of the agreement, Mother and Father shared legal custody
of Child, and physical custody was divided whereby, during the schoolyear,
one parent would have Child for 4 days one week and 3 days the next, and
during the summer, the parties would have physical custody on alternating
weeks. In addition, Mother agreed to continue outpatient therapy for her
longstanding Post Traumatic Stress Disorder issues and sobriety struggles,
and to treat with a neurologist with a background in addiction-related
medical needs.


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J-A22008-16


      with her full treatment regime as set forth herein, or opts not to
      follow the recommended treatment regime as set forth herein,
      temporary primary physical custody will shift to Father
      immediately pending further agreement or Order of Court. . . .

Custody Order, November 18, 2011, ¶ 6.

      On February 12, 2014, Father filed a petition for emergency relief and

a petition to modify custody based on his concerns that Mother was not

maintaining her sobriety and was driving Child in a motor vehicle in a state

of intoxication, and that Child had excessive absences from school when in

Mother’s care.   Claiming a violation of Paragraph 6 of the November 18,

2011 custody order, Father sought primary physical custody of Child.

Following a telephone conference, the trial court ordered Mother to undergo

a drug test. The parties then agreed to an order dated May 21, 2014 that

maintained the terms and requirements of the November 18, 2011 order,

but added a condition that Father could request additional drug testing to be

performed within 24 hours, if he suspected Mother of further use of illegal

substances.

      On March 10, 2016, Father filed the Petition for Contempt and Special

Relief that forms the basis of the instant appeal. The petition alleged that

Father had recently discovered that Mother had been charged with two

counts of driving under the influence within the past year, and that Child had

observed   Mother   acting   strangely   on   a   number   of   occasions   since

Thanksgiving 2015. Father’s petition also claimed that in early March 2016

he observed Mother acting bizarrely, behavior the petition alleges Mother

blamed on anxiety medicine. Father’s petition further alleged that on March

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3, 2016 he requested Mother submit to a drug test, but that she failed to

take one. Finally, the petition claimed Mother violated Paragraph 6 of the

November 18, 2011 custody order.               Accordingly, Father’s petition sought

first, that Father be awarded primary physical custody of Child, and second,

that Mother be held in contempt for failing to take the requested drug test.

       In response to Father’s petition, the trial court conducted a telephone

conference with counsel for both parties on March 15, 2016. Later that day,

the trial court issued an order and memorandum opinion indicating that the

parties had agreed during the telephone conference to resolve the issues

raised by Father’s petition under the terms of the trial court’s prior orders.4

Accordingly, the trial court concluded there was no need to conduct further

hearings or reach a determination of whether Mother was in violation of

Paragraph 6 of the November 18, 2011 order.

       On April 8, 2016, Father’s counsel, Jerry Phipott, withdrew his

appearance and attorney Steven Howell entered his appearance as Father’s

new counsel.       That same day, through his new attorney, Father filed a

motion for reconsideration of the March 15, 2016 order, a petition to modify

custody, and a motion for discovery. On April 13, 2016, while these filings



____________________________________________


4
 The order also imposed the additional requirements that (1) Mother’s visits
with Child be supervised by maternal grandparents, and (2) Mother not drive
an automobile with Child as a passenger. See Trial Court Order, March 15,
2016.


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J-A22008-16



were pending, Father filed a notice of appeal of the trial court’s March 15,

2016 order.5

       Father now raises the following issues for our review:

       1. Did the trial court abuse its discretion in denying Father a fact
       finding hearing on his petition for special relief and contempt
       when he alleged that Mother refused to take a drug test and had
       been charged for driving under the influence of drugs on January
       11, 2016 by the Lebanon City Police Department and on March
       31, 2015 by the Derry Township Police Department and the
       parties’ November 18, 2011 Order at Page 9 stated that “in the
       event Mother does not maintain her sobriety as
       determined by a drug test . . . temporary primary physical
       custody will shift to Father immediately pending further
       agreement or Order of Court?”

       2. Did the trial court abuse its discretion in denying Father relief
       granted to him under a prior final order of court dated November
       18, 2011 at Page 9 which stated that “[i]n the event Mother
       does not maintain her sobriety as determined by a drug
       test . . . temporary primary physical custody will shift to
       Father immediately pending further agreement or Order
       of Court?”

Appellant’s Brief, p. 4 (emphasis in original).

       As noted above, the trial court did not conduct a hearing on Father’s

Petition for Contempt and Special Relief. Instead, the trial court disposed of

Father’s petition following an unrecorded telephone conference based on an

____________________________________________


5
   Also on April 13, 2016, Father filed an additional motion seeking a
transcript of the March 15, 2016 telephone conference. On April 14, 2016,
the trial court issued orders denying Father’s motion for reconsideration,
referring his petition for custody modification to custody conciliation per the
trial court’s local rules, issuing a rule upon Mother to respond to the motion
for discovery, and denying Father’s motion for transcript because the March
15, 2016 telephone conference had not been recorded and thus could not be
transcribed.


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J-A22008-16



alleged agreement that Father’s former counsel now denies existed.          See

Father’s Motion to Correct or Modify Record Pursuant to Pa.R.A.P. 1926,

Exhibit A.    Therefore, we have no record upon which to review Father’s

timely claims.     As a result, we remand the matter for the trial court to

develop a record on Father’s Petition for Contempt and Special Relief, by

hearing or otherwise, as soon as practicable.6

       Case remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




____________________________________________


6
  To the extent a record exists, we have only the trial court’s assertion that it
based its March 15, 2016 order on the agreement of the parties, and
Father’s refutation of that agreement supported by a sworn affidavit from
then-counsel indicating he did not so agree. See Father’s Motion to Correct
or Modify Record Pursuant to Pa.R.A.P. 1926, Exhibit A; Trial Court’s July 14,
2016 memorandum and order denying Father’s Motion to Correct or Modify
Record Pursuant to Pa.R.A.P. 1926. Because a fundamental difference of
such a material fact between not simply the parties, but instead between the
court itself and one of the parties, forms the basis of the record discrepancy
in this matter, in this specific case we find Rules of Appellate Procedure 1923
and 1926 inadequate to resolve the matter.



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