J-S88003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.G.,                                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

M.A.,

                           Appellant                   No. 1976 EDA 2016


                   Appeal from the Order Dated May 27, 2016
               In the Court of Common Pleas of Delaware County
                   Domestic Relations at No(s): 2013-006410


BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED FEBRUARY 14, 2017

        Appellant, M.A. (hereinafter “Mother”) appeals from a final custody

order entered on May 27, 2016. We affirm.

        On June 27, 2013, A.G. (hereinafter “Father”) filed the initial complaint

for child custody in the Court of Common Pleas of Delaware County. Within

the complaint, Father sought partial legal and physical custody of the

parties’ minor child, K.A. (hereinafter “Child”), who was born in September

2012. Father’s Complaint for Custody, 6/27/13, at ¶¶ 1-15. On October 28,

2013, following a hearing before a master, the trial court entered a

temporary custody order, awarding the parties joint legal custody and partial

physical custody over Child. Temporary Custody Order, 10/28/13, at 1.

        In the ensuing year, the parties filed numerous contempt petitions and

the Delaware County Court of Common Pleas held numerous hearings on the



*Retired Senior Judge assigned to the Superior Court.
J-S88003-16



contempt petitions and the underlying custody dispute. On March 27, 2015,

the trial court entered a “final custody order” in the matter, awarding shared

legal and physical custody on a week-on, week-off basis.

      On June 9, 2015, Father filed, in the Court of Common Pleas of

Delaware County, a petition to modify the custody order and grant him

primary physical custody of Child.     Father alleged that modification was

required because Mother “behave[s] in a manner which illustrates her

fundamental inability and outright refusal to comply with th[e trial c]ourt’s

directives.” Father’s Petition to Modify Custody, 6/9/15, at ¶ 11. The trial

court scheduled a hearing on Father’s modification petition for August 3,

2015. See Docket Sheet, 6/12/15.

      On July 10, 2015, Father filed a petition for emergency relief in the

Court of Common Pleas of Delaware County. In the petition, Father alleged

that Mother falsely accused him of sexually abusing Child and that Mother

lodged the false report with the Philadelphia Department of Human Services

(hereinafter “DHS”). Father’s Petition for Emergency Relief, 7/10/15, at 2.

Father claimed that, as a result of the false report, DHS notified Father that

“any and all custodial time with [Child] was suspended for the foreseeable

future pending the outcome of the investigation.” Id. Father requested that

the trial court “enter an order which prohibits [Mother] from leaving the

jurisdiction of this court . . . and enjoins [Mother] from making further

untrue statements.” Id. at “Wherefore” Clause.




                                     -2-
J-S88003-16



      The trial court held a hearing on Father’s emergency petition and, on

July 20, 2015, entered an order finding that:         Father currently resides in

Philadelphia; Mother currently resides in a Philadelphia women’s shelter; the

trial court “has no confidence that Mother will cooperate in co-parenting

[Child], nor comply with the existing custody order;” and, for the

“immediate safety of [] Child . . . it is in the [Child’s] best interest[] . . . that

she reside temporarily on a primary basis with Father.” Trial Court Order,

7/20/15, at 1-2 (some internal capitalization omitted).            The trial court

ordered that Father have temporary primary physical custody of Child “until

a review hearing on September 18, 2015[,] or as further modified by court

order.” Id. at ¶ 10 (some internal capitalization omitted). Moreover, with

respect to the petition to modify custody, which Father filed on June 9, 2015

and which was scheduled for an August 3, 2015 hearing, the trial court

“cancel[ed] the [August 3, 2015] hearing . . . [and] schedul[ed] a trial on

[Father’s] petition to modify [custody for] Monday, February [1], 2016.”

N.T. Hearing, 7/16/15, at 123; see also Trial Court Order, 7/20/15, at ¶ 21.

The trial court later rescheduled the custody modification trial for March 29,

2016. See Trial Court Order, 12/17/15, at 1.

      On February 19, 2016, Mother filed three petitions in the Delaware

County Court of Common Pleas: a petition to modify the custody order; a

petition for contempt; and, a petition for change of venue.            First, within

Mother’s petition to modify the custody order, Mother requested that the

trial court modify the custody order, so as to provide her with shared legal

                                        -3-
J-S88003-16



and physical custody of Child; Mother also requested that the trial court

“preserve and enforce [Mother’s] rights under the orders of October 1[,]

2015 and December 4[,] 2015.”         Mother’s Petition to Modify Custody,

2/19/16, at ¶ 33 and “Wherefore” Clause.

      Within her petition for change of venue, Mother averred that she lives

in Philadelphia, Pennsylvania, Father lives in Bucks County, Pennsylvania,

and Child lives with either Mother or Father. As Mother claimed, since she,

Father, and Child live outside of Delaware County, the entire custody matter

should be transferred from the Delaware County Court of Common Pleas to

either the Philadelphia County or the Bucks County Court of Common Pleas.

Mother’s Petition for Change of Venue, 2/19/16, at 1-2.

      Finally, within Mother’s petition for contempt, Mother requested that

the trial court find Father in contempt of court for: missing a scheduled child

exchange; moving his address without court authorization; denying Mother

visitation on certain occasions and holidays; blocking Mother’s telephone

calls to Child; taking Child to the doctor without Mother’s knowledge;

refusing to “list Mother’s information on any childcare forms;” “ignor[ing]

Mother’s requests for co-parent counseling;” and, “block[ing] Mother’s

attempts to enroll [] Child in mental healthcare.”        Mother’s Petition for

Contempt, 2/19/16, at ¶¶ 1-30. Mother requested that the trial court “find

[Father] in contempt and [] make such as to preserve and enforce

[Mother’s] rights under the orders of October 1[,] 2015 and December 4[,]

2015.” Id. at “Wherefore” Clause.

                                     -4-
J-S88003-16



      The trial court scheduled Mother’s petition for modification of custody

for trial on March 29, 2016 – which was the same day that Father’s petition

for modification was scheduled for trial. See Docket Sheet at 2/22/16 Entry.

Moreover, on March 10, 2016, the trial court entered two orders: an order

holding Mother’s petition for contempt in abeyance and an order denying

Mother’s petition for change of venue. Trial Court Order, 3/10/16, at 1-2.

      The trial court held the scheduled hearing on the petitions to modify

custody on March 29 and 30, 2016.          On May 27, 2016, the trial court

entered its “final order of custody,” wherein the trial court ordered that:

with some exceptions, the parties had joint legal custody over Child; Father

had primary physical custody of Child; and, Mother had partial physical

custody of Child. Trial Court Order, 5/27/16, at 41-42. Further, on May 27,

2016, the trial court entered an order granting in part and denying in part

Mother’s petition for contempt. Within the trial court’s contempt order, the

trial court declared that it found Father in contempt for failing to list Mother

on Child’s daycare documentation. Trial Court Contempt Order, 5/27/16, at

3.   With respect to possible sanctions for this contempt finding, the trial

court declared: “this court notes that Mother did not make any request for

sanctions for the contempt; as such this court determines that this contempt

is granted with no further penalty.” Id. (internal capitalization and emphasis

omitted).   The trial court denied the remainder of Mother’s contempt

petition.




                                     -5-
J-S88003-16



      On June 24, 2016, Mother filed a notice of appeal from the trial court’s

orders.    Within her contemporaneously-filed concise statement of errors

complained of on appeal, Mother claimed that the trial court erred:         in

denying her petition for change of venue; in failing to find Father in

contempt for “unilaterally moving to Bucks County;” and, in failing to grant

“the requested counsel fees in accordance with its finding of Father’s

contempt.” Mother’s Concise Statement, 6/24/16, at 1-5. Mother raises two

issues on appeal:

          1. Did the [trial] court err by exercising subject matter
          jurisdiction under the [Uniform Child Custody Jurisdiction
          and Enforcement Act] where the requirements for subject
          matter jurisdiction therein were not satisfied?

          2. If the [trial] court nevertheless had subject matter
          jurisdiction, did the [trial] court err in its May 27, 2016
          order denying Mother’s petition for contempt against Father
          and for refusing to otherwise impose sanctions on Father’s
          other conduct which was ruled to be contemptuous?

Mother’s Brief at 5 (some internal capitalization omitted).

      As this Court has explained:

          Pennsylvania adopted the [Uniform Child Custody
          Jurisdiction and Enforcement Act (hereinafter “UCCJEA”), 23
          Pa.C.S.A. §§ 5401-5482,] in 2004. The purpose of the
          UCCJEA is to avoid jurisdictional competition, promote
          cooperation between courts, deter the abduction of children,
          avoid relitigation of custody decisions of other states, and
          facilitate the enforcement of custody orders of other states.
          [23 Pa.C.S.A. § 5401 cmt.] While the UCCJEA is applicable
          to interstate proceedings, our Legislature has determined
          that its provisions “allocating jurisdiction and functions
          between and among courts of different states shall also
          allocate jurisdiction and functions between and among the
          courts of common pleas of this Commonwealth.”             23

                                      -6-
J-S88003-16


        Pa.C.S.A. § 5471 [(“The provisions of this chapter allocating
        jurisdiction and functions between and among courts of
        different states shall also allocate jurisdiction and functions
        between and among the courts of common pleas of this
        Commonwealth”)].

        In order to effectuate this legislative mandate, our
        [S]upreme [C]ourt has promulgated specific rules for
        applying the provisions of the UCCJEA to intrastate custody
        disputes. The rules recognize that all counties within the
        Commonwealth maintain subject matter jurisdiction of
        custody disputes.    However, Pennsylvania Rule of Civil
        Procedure 1915.2 governing venue of custody matters
        defines how and what county may properly exercise that
        jurisdiction.

J.K. v. W.L.K., 102 A.3d 511, 513-514 (Pa. Super. 2014) (internal footnote

omitted).

      On appeal, Mother claims that the Court of Common Pleas of Delaware

County lacked subject matter jurisdiction to rule on Father’s June 9, 2015

petition to modify custody because, at the time Father filed his petition,

Mother, Father, and Child all lived in Philadelphia County. This claim fails.

      At the outset, as we noted in J.K., we note again the conflation of the

concepts of jurisdiction and venue.        As the J.K. Court stated, “[o]ur

[S]upreme [C]ourt explained jurisdiction and venue as follows:”

        Frequently, the terms jurisdiction and venue are used
        interchangeably although in fact they represent distinctly
        different concepts. Subject matter jurisdiction refers to the
        competency of a given court to determine controversies of a
        particular class or kind to which the case presented for its
        consideration belongs.      Venue is the place in which a
        particular action is to be brought and determined, and is a
        matter for the convenience of the litigants. Jurisdiction
        denotes the power of the court whereas venue considers the
        practicalities to determine the appropriate forum.


                                     -7-
J-S88003-16



J.K., 102 A.3d at 513, quoting In re R.L.L.’s Estate, 409 A.2d 321, 322 n.3

(Pa. 1979).

      Moreover, as we held in J.K., “all counties within the Commonwealth

maintain subject matter jurisdiction of custody disputes” and the application

of the UCCJEA to intrastate custody disputes concern matters of venue –

not subject matter jurisdiction. Thus, in J.K., when the father claimed that

the Court of Common Pleas of Chester County, Pennsylvania “no longer

ha[d] continuing, exclusive venue [under the UCCJEA] because none of the

parties currently reside[d] there,” and all of the parties had moved to

Montgomery County, Pennsylvania, we held that the father was entitled to

relief because, under the UCCJEA, “the Chester County Court of Common

Pleas [] lost the exclusive, continuing authority to exercise its venue over

[the] matter.” See J.K., 102 A.3d at 513-516 (emphasis added).

      On appeal, Mother claims only that the Court of Common Pleas of

Delaware County lacked subject matter jurisdiction to rule on Father’s

petition to modify custody because, when Father filed his petition to modify,

the parties all lived in Philadelphia County.   Mother’s Brief at 10-15.   Yet,

since “all counties within the Commonwealth maintain subject matter

jurisdiction of custody disputes,” Mother’s claim on appeal immediately fails.

J.K., 102 A.3d at 514.

      Further, since we may not advocate for a party, we may not sua

sponte consider the independent question of whether the trial court

possessed “the exclusive, continuing authority to exercise its venue over

                                    -8-
J-S88003-16



[the] matter.”   Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa.

1999) (“[the Pennsylvania Supreme Court] has held that an issue will be

deemed to be waived when an appellant fails to properly explain or develop

it in his brief”); Rabatin v. Allied Glove Corp., 24 A.3d 388, 398 (Pa.

Super. 2011) (the Superior Court “may not act as counsel for an appellant

and develop arguments on his behalf”). However, we note that, on February

19, 2016, Mother filed her own petition to modify the custody order in the

Court of Common Pleas of Delaware County. Moreover, the trial court’s May

27, 2016 order disposed of both Father’s and Mother’s petition to modify

custody.   Thus, if Mother properly presented the issue of venue to this

Court, we would have held that Mother waived any claim that the trial court

lacked “the exclusive, continuing authority to exercise its venue over [the]

matter,” as Mother filed her own petition to modify the custody order in the

Delaware County Court of Common Pleas. See J.K., 102 A.3d at 514; see

also Wolf v. Weymers, 427 A.2d 678, 680-681 (Pa. Super. 1981) (“as the

Supreme Court made clear, the question of which county within this state

should decide a particular custody case, when that case is properly within

the jurisdiction of this Commonwealth, is a venue question. It is settled law

that the right to raise the objection of venue is a mere personal privilege

belonging to the defendant which may be waived by that defendant;

and that, unlike the question of subject matter jurisdiction, it is generally

held that the court on its own motion may not order a change of venue, nor

may it dismiss for improper venue.    Therefore, since the defendant in the

                                    -9-
J-S88003-16



present case . . . raised no objection to venue, this issue is not properly

before this Court”) (emphasis added); Pa.R.C.P. 1915.5 (“[a] party must

raise any question of . . . venue . . . by preliminary objection filed within

twenty days of service of the pleading to which objection is made”).

      Next, Mother claims that the trial court erred when it denied, in part,

her motion for contempt and when it granted, in part, her motion for

contempt but failed to award her attorneys’ fees. This claim fails.

      As this Court explained, “[t]he refusal of a lower court to enter an

order holding someone in contempt may be a ‘final order,’ but only if the

refusal is tantamount to denying to the party requesting the order relief to

which that party has a right under an earlier final order.”        Schultz v.

Schultz, 70 A.3d 826, 828 (Pa. Super. 2013) (internal emphasis omitted),

quoting Commonwealth v. Guardiani, 310 A.2d 422, 424 (Pa. Super.

1973) (en banc). In the case at bar, Mother’s claims of contempt all concern

matters which were decided “under an earlier final order.” See Schultz, 70

A.3d at 828. Therefore, we have jurisdiction over this portion of the appeal.

However, Mother’s claims on appeal fail.

      “This Court will reverse a trial court's order denying a civil contempt

petition only upon a showing that the trial court misapplied the law or

exercised its discretion in a manner lacking reason.”         MacDougall v.

MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012). “An abuse of discretion

occurs when a trial court, in reaching its conclusions, overrides or misapplies

the law, or exercises judgment which is manifestly unreasonable, or the

                                    - 10 -
J-S88003-16



result of partiality, prejudice, bias or ill will.” Kelly v. Siuma, 34 A.3d 86,

91 (Pa. Super. 2011) (internal quotations and citations omitted).         Thus,

“even where the facts could support an opposite result, . . . we must defer

to the trial [court] so long as the factual findings are supported by the

record and the court’s legal conclusions are not the result of an error of law

or an abuse of discretion.” In re Adoption of S.P., 47 A.3d 817, 826-827

(Pa. 2012).

      “The purpose of a civil contempt proceeding is remedial, and 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.”     Philadelphia    Marine    Trade     Ass’n   v.   Int’l

Longshoremen’s Ass’n, 140 A.2d 814, 818 (Pa. 1958). “For a person to

be found in civil contempt, the moving party must prove that:          (1) the

contemnor had notice of the specific order or decree that he disobeyed; (2)

the act constituting the violation was volitional; and[,] (3) the contemnor

acted with wrongful intent.” Gunther v. Bolus, 853 A.2d 1014, 1017 (Pa.

Super. 2004).   “The order alleged to have been violated must be definite,

clear, and specific – leaving no doubt or uncertainty in the mind of the

contemnor of the prohibited conduct and is to be strictly construed.”       Id.

(internal quotations, citations, and emphasis omitted).       Moreover, “[i]n

proceedings for civil contempt of court, the general rule is that the burden of

proof rests with the complaining party to demonstrate that the defendant is

in noncompliance with a court order.” MacDougall, 49 A.3d at 892.

                                    - 11 -
J-S88003-16



      First, Mother claims that the trial court erred when it denied her

petition to find Father in contempt of court for “relocating” his residence

from Philadelphia to Bucks County, Pennsylvania, without authorization.

Mother’s Brief at 16. This claim fails.

      The Custody Act defines the term “relocation” as:           “[a] change in a

residence   of   the   child   which   significantly   impairs   the   ability   of   a

nonrelocating party to exercise custodial rights.” 23 Pa.C.S.A. § 5322. In

this case, the trial court held a hearing on Mother’s contempt petition and

determined that Father’s move did not “significantly impair[] the ability of

[Mother] to exercise [her] custodial rights.”           See Trial Court Opinion,

7/22/16, at 60.        On appeal, Mother claims only that the trial court’s

determination was against the weight of the evidence. See Mother’s Brief at

16. Yet, as the trial court explained, its decision was supported by the facts:

        Although [Mother] avers that it is Father’s actions that have
        severely limited the available options for the parties to
        share physical custody, th[e trial] court disagrees. Although
        the lack of available options is unfortunate, both parties
        work comparable hours at their respective jobs. [The trial]
        court notes that despite her complaint about the amount of
        time [] Child spends in daycare due to Father’s work
        schedule, Mother’s work schedule would likewise require []
        Child to attend daycare for a comparable amount of time,
        due to her job’s location in King of Prussia. Furthermore,
        [the trial] court notes that since July [] 2015, Father has
        been the primary physical custodian of [] Child. Father’s
        other child attends school on the same street as [] Child,
        making it easy and efficient for Father to transport them to
        and from school. While Mother has valid complaints about
        the distance of [] Child’s daycare from her residence, [the
        trial] court does not believe it would be in the best interest


                                       - 12 -
J-S88003-16


        of [] Child for her daycare to change based solely on how
        convenient it is for Mother to avail herself of her custody.

        Further, [the trial] court notes that the physical custody
        arrangement entered in the May 27, 2016 final order of
        custody also ensures that Mother need not be subjected to
        the long distance between her residence and [] Child’s
        daycare should she not wish to. In that event, [the trial]
        court has ordered Father to ensure that [] Child arrives at
        the 14th District Police Precinct by 6:15 [p.m.], but noted
        that Mother was free to pick up [] Child before that at []
        Child’s day care if she is able and willing. Again, [Mother]
        failed to mention physical custody in her appeal, and as
        such, [the trial] court assumes she has no challenge to this
        arrangement which, in [the trial] court’s mind, provides her
        either with an opportunity to pick up [] Child from daycare
        or have [] Child brought to her to a police station only three
        blocks away from Mother’s residence.

Trial Court Opinion, 6/22/16, at 61-62 (some internal capitalization

omitted).

      The trial court’s well-reasoned decision does not constitute an abuse of

discretion. Therefore, Mother’s claim on appeal fails.

      Finally, Mother claims that the trial court erred in failing to award her

attorneys’ fees, when the trial court found Father in contempt of court for

failing to list Mother as Child’s mother, on Child’s daycare documentation.

Yet, as the trial court correctly explained, Mother did not request attorneys’

fees in her contempt petition. Mother’s Petition for Contempt, 2/19/16, at

“Wherefore” Clause (Mother requested that the trial court “find [Father] in

contempt and [] make such as to preserve and enforce [Mother’s] rights

under the orders of October 1[,] 2015 and December 4[,] 2015”). Further,

the trial court determined that sanctions were not appropriate because the



                                    - 13 -
J-S88003-16



violation was relatively minor and the trial court “was confident [] that

Father did not require sanctions in order to comply with [the trial court’s]

orders in the future.” See Trial Court Opinion, 6/22/16, at 63.

       The trial court’s refusal to award attorneys’ fees for such a minor

instance of non-compliance does not constitute an abuse of discretion.

Therefore, Mother’s final claim on appeal fails.

       Order affirmed. Jurisdiction relinquished.1,   2


____________________________________________


1
  In her appellate brief, Mother advised that she sought to withdraw her
related appeal from a prior order entered in this case, which was docketed at
41 EDA 2016. By separate order entered on September 20, 2016, we
granted Mother’s application to discontinue the appeal at 41 EDA 2016.
Order, 9/20/16, at 1.
2
  On January 31, 2017, Mother filed an “application to submit post-
submission communication in the form of a recent trial court order
acknowledging that there is no subject matter jurisdiction in Delaware
County” (hereinafter “Mother’s Application”). Within Mother’s Application,
Mother directs this Court’s attention to a January 31, 2017 trial court order,
which disposed of yet another contempt petition filed in the case. The trial
court’s January 31, 2017 order declares:

         AND NOW, to wit, this 31[st] day of January, 2017 upon
         consideration of Plaintiff’s Petition for Contempt filed on
         January 27, 2017, based upon the [trial] court’s review of
         the record and the petition, th[e trial] court hereby ORDERS
         and DECREES that said Petition for Contempt is DENIED
         without prejudice to refile in Bucks County, Pennsylvania as
         th[e trial] court no longer retains jurisdiction in this matter
         as neither party presently resides in Delaware County.
         Furthermore, th[e trial] court notes that Children and Youth
         Services of Bucks County [has] recently been involved and
         therefore th[e trial] court determines that Bucks County is
         the better forum for this case.

(Footnote Continued Next Page)


                                          - 14 -
J-S88003-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




                       _______________________
(Footnote Continued)

Trial Court Order, 1/31/17, at 1 (internal bolding and some internal
capitalization omitted).

The trial court’s January 31, 2017 order is not currently on appeal and the
trial court’s declaration that it lacked “jurisdiction” to consider the January
27, 2017 contempt petition does not alter this Court’s conclusion in the case
at bar. Further, as explained above, while the trial court may not have had
“the exclusive, continuing authority to exercise its venue over” the January
27, 2017 contempt petition, it undoubtedly had jurisdiction to consider the
petition. See J.K., 102 A.3d at 516 (emphasis added).



                                           - 15 -
