J-A14036-16



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

J.M.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

K.W.

                           Appellant                   No. 76 MDA 2016


              Appeal from the Order Entered December 24, 2015
              In the Court of Common Pleas of Schuylkill County
                      Civil Division at No(s): S- 523 -2014


BEFORE:    BOWES, OTT AND PLATT,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

                                                   FILED OCTOBER 24, 2016

       On December 24,        2015, the trial court found K.W.   ( "Mother ")   in

contempt of   a   temporary custody order and stripped her of primary physical

custody of the parties' then -four -year -old -son, B.M., and three -year-old

daughter, V.M.      In contrast to my esteemed colleagues, I believe that the

sanction was improper. Accordingly, I respectfully dissent from that aspect

of the majority's decision.

       Preliminarily, I agree with my learned colleagues' determination that

the trial court did not abuse its discretion in finding Mother in contempt for

surreptitiously relocating with the parties' children from Schuylkill County,

Pennsylvania to Lancaster County.       Likewise, I agree with the majority's


* Retired Senior Judge assigned to the Superior Court.
J-A14036-16



conclusions that Mother did not contravene an existing court order by

placing B.M. in the daycare of her choice, and that remand is necessary to

re- evaluate the award of counsel fees in light of our reversal of this aspect of

the contempt order.     However, I reject the majority's characterization of

Mother's argument, which assails the trial court for modifying an existing

child custody order as    a   sanction for her contempt, as tantamount to        a


"[claim] that challenges the interim custody order." Majority memorandum

at 5.

        The majority is correct insofar as it reiterates the well- ensconced

principle that an interim custody order      is   not appealable.    The rationale

behind this precept is that, until the trial court has rendered its best -interest

determination on the merits, an interim custody order          is   ephemeral and

subject to    further modification    upon    petition.'    However,    from   my

perspective, the instant order is not an interim determination of the

children's best interest, and Mother does not challenge the trial court's


' I observe that Father filed   a petition for custody on March 21, 2014, and
the record bears out that as of January 5, 2016, the trial court struck the
case from the trial list and postponed the custody trial, yet again, for the
preparation of updated custody evaluations. Thus, after approximately two
years of litigation, the trial court still has not confronted Father's custody
complaint and no date has been set for a resolution of the custody matter
that will result in a final appealable custody order addressing the children's
best interest. Compare this situation with Pa.R.C.P. 1915.12(b) and (c)
regarding the prompt disposition of custody cases (generally trial should be
scheduled within 180 days of the custody complaint and trial shall
commence within 90 days of the scheduling order).


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determination of custody per             se.   In reality, the order in the case at bar is           a


finding of contempt and             a   concomitant sanction, which Mother correctly

argues was entered in contravention of our jurisprudence regarding the

modification of custody as          a   consequence of contempt.

       While an order granting temporary or interim custody is interlocutory,

it is beyond cavil that        a   present finding of contempt is final and appealable

when   a    sanction is imposed.           Stahl   v. Redcay, 897 A.2d 478 (Pa.Super.

2006). Accordingly, I would address Mother's issue relating to the contempt

sanction and find that the trial court's sanction was impermissible.

       It   is   settled that an adjudication of contempt           is   not   a   proper basis to

modify an existing custody arrangement.                     See Clapper v. Harvey, 716

A.2d 1271, 1275 (Pa.Super. 1998) ( "a mother's violation of                        a   custody order

may be an appropriate foundation for               a   finding of contempt, but it cannot be

the basis for an award of custody "); Rosenberg v. Rosenberg, 504 A.2d

350, 353 (Pa.Super. 1986) ( "A custody award should not be used to reward

or punish        a   parent for good or bad behavior ").         This Court has confronted

several cases where the trial court awarded one party custody as                          a   sanction

for the other party's contumacious conduct.                    See e.g. Langendorfer v.

Spearman, 797 A.2d 303 (Pa.Super. 2002); and Everett v. Parker, 889
A.2d 578, 581 (Pa.Super. 2005); cf. Steele v. Steele, 545 A.2d 376

(Pa.Super. 1988) (noting that it is generally improper for trial court to

modify custody arrangements without petition for modification before it).

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The effect of this jurisprudence is that             a   trial court's ability to alter custody

as a contempt sanction is restricted to circumstances where the responding

party     is   given express notice that custody will be at issue during the

contempt proceeding.

        Pursuant to Pa.R.C.P. 1915.12(a),                a   contempt petition must include       a


section entitled "Notice and Order to Appear." The rule prescribes the form

and content of the notice and order to appear.                    Herein, Father's petition for

contempt requested        a   modification of custody but it lacked the required

notice and order to appear as outlined by Rule 1915.12. As Father neglected

to issue the required notice and order to appear, he did not provide Mother

notice that the existing custody order could be modified as                   a   consequence of

the contempt proceedings. Moreover, both the original scheduling order that

the trial court issued and its revised order failed to mention custody at all.

        In Everett, supra at 581, we explained, "When modification of

custody is sought by      a   custody contempt petitioner, the respondent must be

given particular notice of that objective." In reaching that determination, we

applied        the requirement stated       in       Langendorfer, supra, that when
modification of custody        is   sought by    a   contempt petitioner, the respondent

must be given notice of that objective, both in the body of the contempt

petition and in the order to appear.                 In Everett,      a   father filed   a   pro se

contempt petition against the mother who maintained primary custody of his

child. While the third page of the contempt petition requested                       a   change in

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the custody arrangement, the father failed to serve the petition on Mother

properly.   Instead, he mailed   a   copy of the petition to an attorney who

represented mother during prior dependency proceedings and to the family's

CYS caseworker.     Neither the mother nor her former attorney, who never

entered an appearance in the custody dispute, appeared at the contempt

hearing. Nevertheless, based upon the caseworker's statement that she had

provided the mother with actual notice of the date and time of the hearing,

the trial court determined that the mother received sufficient notice of the

father's petition. Accordingly, it held the contempt hearing ex parte, found

the mother in contempt, and modified the existing custody order by

awarding the father primary custody of his son. On appeal, we vacated the

contempt order.

      As it relates to the issue in the case at bar, the      Everett Court
concluded that the trial court violated the mother's right to due process by

modifying the custody order as part of the contempt proceedings because

the mother was denied specific notice that custody would be at stake in the

contempt proceedings. Noting that the mother was not properly served with

the contempt petition that implicated the custody arrangement or with the

notice of the     scheduled   contempt hearing,    we   determined   that the

caseworker's notification to the mother concerning the time and date of the

proceedings was insufficient.    Specifically we reasoned, "Formal notice and

an opportunity to be heard are fundamental components of due process

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when   a   person may be deprived in        a   legal proceeding of   a   liberty interest,

such as physical freedom, or      a    parent's custody of her child."            Everett,
supra at 580.
       As noted, we confronted a similar factual scenario in              Langendorfer,
supra, wherein the mother, who maintained partial physical custody of her
son during the     summer, filed       a    contempt petition against the father

asserting that he had violated the existing custody arrangement.                  Notably,

the Mother's contempt petition failed to include any request to transfer

custody and the order scheduling the contempt hearing did not notify either

party that custody would be an issue during the contempt proceedings.

Moreover, there was no indication in the record that the trial court

consolidated the mother's contempt petition with the father's previously filed

motion to temporarily adjust the custody schedule.            Following the contempt

hearing, the trial court awarded the mother sole legal and physical custody

of the child. However, relying upon the precept discussed in Choplosky v.

Choplosky, 584 A.2d 340, 342 (Pa.Super. 1990), "without                      a   motion to

modify visitation rights before it,   a    trial court may not permanently alter the

visitation rights of [the] parties," this Court vacated the custody order on

appeal as violating the father's right to due process.                We reiterated the

Langendorfer Court's rationale        in   P.H.D. v. R.R.D., 56 A.3d 702, 707 -708

(Pa.Super. 2012) and concluded, "As in Langendorfer, Father here had no



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notice that custody was at issue. Neither the contempt petition nor the

notice and order to appear held out the prospect of custody modification."

      Thus,       as    the foregoing       discussion   of relevant binding   authority

highlights,   a   trial court may transfer physical custody at the conclusion of      a


contempt hearing only when the respondent has been given particular notice

of that objective in both the body of the contempt petition and the notice

and order to appear.           It   is an   abuse of discretion for the trial court to

transfer custody from one party to the other if the parties lack advance

notice that custody is to be an issue at the contempt hearing.

      Instantly, Mother contends that the trial court violated her due process

rights by modifying the custody order concomitant with the contempt

adjudication.          The crux of Mother's argument is that Father's contempt

petition provided insufficient notice that custody would be at issue during the

contempt proceedings.          She continues that by awarding custody to Father

without affording notice that the existing custody order could be modified,

the trial court denied her the opportunity to defend against modification.

      Father counters that Mother had notice that he sought custody as                a


result of her alleged contempt. He points out that his petition entreated the

court to grant him custody of their children and the proposed order that he

attached to his petition provided, "Plaintiff is granted primary custody until

further order of court." Petition for Special Relief and Contempt, 9/23/15, at

unnumbered page 2, and attached proposed order. Thus, Father contends

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that Mother had the opportunity to prepare for the contempt proceedings

and to advocate her position vis -à -vis the custody request.                While the

majority declines to address this issue, I would reject Father's claim that an

averment    in his   petition and one line in the proposed order for relief satisfied

the requirements we outlined in Langendorfer, supra and its progeny.

        As in   Langendorfer, there was        no petition to modify custody before

the trial court during the contempt proceedings, Father neglected to provide

the notice and order to appear pursuant to Rule 1915.12(a), and the

scheduling orders that the court issued did not disclose that the trial court

would     address the matter of          physical custody during        the contempt

proceeding.      While Father included    a   custody - related prayer for relief in his

contempt petition and the proposed order that he submitted for the court's

approval, Mother was not provided the requisite specific notice in both the

contempt petition and the attenuate orders directing her to appear that her

custody rights would be at stake.         See Everett, supra.        As I believe   that

Father's notice to Mother that he sought to modify the custody arrangement

during the contempt proceedings was deficient, I would find that, absent

notice of that objective, the trial court erred in modifying custody as                 a


contempt sanction.

        In addition, I disagree with the majority's alternative conclusion that

the trial court issued the interim custody order pursuant to the trial court's

authority under Pa.R.C.P. 1915.13.            As a preliminary matter, I agree      that,

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under appropriate circumstances,          a   trial court may modify    a   custody order

temporarily pursuant to Pa.R.C.P.         1915.13.2    See Choplosky, supra at 343,

( "special   relief' may     in some cases be      appropriate (and necessary) where

the situation      is such   that, for example, temporary modification of custody or

visitation rights would preserve the well -being of the children involved while

the parties prepare to resolve more permanently the question of where

and /or with whom the children should remain. "); 23 Pa.C.S.            §   5323(b) ( "The

court may issue an interim award                   of custody to   a    party who has

standing     ...   in   the manner prescribed by the Pennsylvania Rules of Civil

Procedure governing special relief in custody matters. ").             However, even to

the extent that the majority surmises that the trial court might have

intended      to   grant special relief pursuant to         Rule   1915.13, which        it

undoubtedly was authorized to do, the trial court did not enter an order to

that effect.



2
    Rule 1915.13 provides as follows:

       At any time after commencement of the action, the court may on
       application or its own motion grant appropriate interim or special
       relief. The relief may include but is not limited to the award of
       temporary custody, partial custody or visitation; the issuance of
       appropriate process directing that a child or a party or person
       having physical custody of a child be brought before the court;
       and a direction that a person post security to appear with the
       child when directed by the court or to comply with any order of
       the court.


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      Presently, the certified record demonstrates that the trial court did not

intend to issue special relief pursuant to Rule 1915.13. In fact, contrary to

the majority's supposition, the trial court unquestionably granted Father

shared physical custody as an impermissible sanction for contempt. Indeed,

the court explicitly directed, "[The] appropriate sanction [against Mother]   is

to award shared custody until the parties undergo the trial."      Trial Court

Order, 12/24/15, at unnumbered page 7.

      For all   of the foregoing reasons, I respectfully dissent from the

portions of the majority decision that quash the portion of the appeal

relating to the improper modification of physical custody as      a   contempt

sanction and imply that the custody modification could have been prompted

by Rule 1915.13.     I would address the merits of Mother's argument and

vacate the trial court's contempt order as it relates to awarding Father

shared   physical   custody.   I   join all other aspects of the majority

memorandum.




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