J-A26034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 B.J.                                      :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
 v.                                        :
                                           :
 D.M.                                      :
                                           :
 v.                                        :
                                           :
 J.L. & I.L.                               :   No. 565 MDA 2017

         Appellants/Intervenors




              Appeal from the Order Entered March 21, 2017
 In the Court of Common Pleas of Wyoming County Civil Division at No(s):
                                2015-648


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                        FILED NOVEMBER 16, 2017

        Appellants/Intervenors, J.L. and I.L. (“Grandparents”), appeal from the

order entered March 21, 2017, granting the motion for contempt filed by

Appellee, B.J., and further ordering that Grandparents could purge their

contempt by paying all legal fees incurred by Appellee pertaining to his petition

for contempt and a petition for removal of the guardian ad litem (“GAL”). We

reverse.

        The record reveals that Appellee commenced this underlying custody

action in June 2015, seeking primary physical and sole legal custody of his

step-daughter, K.M. (“Child”), born in February 2001.        See Complaint for
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Primary Custody Pursuant to 23 Pa.C.S.A. § 5324.       Child’s mother passed

away in June of 2015, and Child had little or no contact with, D.M., her

biological father. Id. In June 2015, Child’s maternal grandparents filed a

petition to intervene. See Petition to Intervene in the Custody Action.

       Following a hearing in June 2015, temporary physical and legal custody

were given to Appellee; D.M. was given liberal visitation; and Grandparents

were given temporary custody two days per week and visitation as agreed

upon by the parties. See Order, 6/25/15. In April of 2016, Grandparents

were given temporary physical custody of Child and joint legal custody along

with D.M. See Order, 4/21/16. The court further ordered that Grandparents

were to provided Appellee with information regarding Child’s health, welfare,

education, and extra-curricular activities as they deemed appropriate.     Id.

Appellee was not given visitation rights.

       In September 2016, Appellee filed an Emergency Petition for Special

Relief seeking to have Child returned to Pennsylvania and for the court to hold

Grandparents in contempt for failing to follow the court’s orders and not

notifying parties of Child’s relocation to Oregon.1     See Motion, 9/6/16.

Grandparents then filed a Motion to remove the GAL, alleging that GAL was

not acting in the child’s best interest and had not contacted Child in five

months. See Motion, 9/26/16. In November 2016, GAL filed a memorandum

____________________________________________


1 We note, that although D.M. agreed to Child’s relocation, Appellee did not
include natural father in its petition and thus, D.M. was not held in contempt
and is merely a party in the underlying custody action.

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requesting a contempt hearing due to Grandparents’ lack of cooperation and

asked that the court order that Child be returned to Pennsylvania. Hearings

were held on Appellee’s motions and GAL’s memorandum on November 29,

2016, and on February 28, 2017. Following the hearings, the court issued an

order permitting GAL to withdraw upon appointment of a new GAL.            See

Order, 3/1/17. Subsequently, the court found Grandparents in contempt for

allowing Child to move to the state of Oregon without notification and approval

of the court or GAL and for not informing the court or GAL of Child’s visit

during the 2016 Christmas holiday. See Order, 3/3/17; see also Amended

Order, 3/21/17.

      In April 2017, Grandparents filed a motion for reconsideration that was

denied by the trial court. Grandparents timely filed a notice of appeal and

court-ordered Pa.R.A.P. 1925(b) statement.         The trial court issued a

responsive opinion.

      On appeal, Grandparents raise the following issues for our review:

      I.    Whether, where there was no specific court order, the lower
            court’s finding of [Grandparents] in contempt was against
            the weight and sufficiency of the evidence.

      II.   Whether, where the [Grandparents] acted without wrongful
            intent, the lower court’s finding of [Grandparents] in
            contempt was against the weight and sufficiency of the
            evidence.

Appellant’s Brief at 7.

      Grandparents contend that the trial court abused its discretion, as they

are not in violation of a specific court order prohibiting relocation. Further,


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Grandparents assert that any ambiguity in the court’s directive regarding

where Child should attend school must be resolved in their favor.            Thus,

according to Grandparents they may not be held in contempt.         Appellant’s

Brief at 10, 12-15. Following a review of the record, we agree.

      This Court has explained our standard of review for a civil contempt

order as follows:

      When considering an appeal from an Order holding a party in
      contempt for failure to comply with a court Order, our scope of
      review is narrow: we will reverse only upon a showing the court
      abused its discretion.    The court abuses its discretion if it
      misapplies the law or exercises it discretion in a manner lacking
      reason.

Harcar v. Harcar 982 A.2d 1230 (Pa. Super. 2009).

      Furthermore,

      To be punished for contempt, a party must not only have violated
      a court order, but that order must have been “definite, clear, and
      specific-leaving no doubt or uncertainty in the mind of the
      contemnor of the prohibited conduct.”

         Because the order forming the basis for civil contempt must
         be strictly construed, any ambiguities or omissions in the
         order must be construed in favor of the defendant. In such
         cases, a contradictory order or an order whose specific
         terms have not been violated will not serve as the basis for
         a finding of contempt.

      To sustain a finding of civil contempt, the complainant must prove
      [by a preponderance of the evidence] 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. A person may not be held
      in contempt of court for failing to obey an order that is too vague
      or that cannot be enforced.



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Lachat v. Hinchcliffe, 769 A.2d 481, 488-489 (Pa. Super. 2001) (emphasis

in original).2

       Here, the trial court acknowledged that there is not a court order

directing that Child remain in Pennsylvania. Trial Court Opinion, 6/15/17, at

3. Nevertheless, the court suggests that Grandparents violated its directive

that Child was to attend Holy Cross High School for the 2016-2017 school

year. Id. The trial court fails to identify where in the record this directive

was made, and our review discloses no directive. To the contrary, the only

court order pertaining to Child’s school attendance was for the 2015-2016

school year.     See Order, 9/29/15.           Grandparents moved Child during the

summer of 2016, and thereafter, Child was enrolled in school in Oregon for

the 2016-2017 school year. While it may have been the court’s intent that

the child attend Holy Cross High School for the 2016-2107 academic year, this

intent was not prescribed in a court order. The resulting ambiguity must be

resolved in Grandparents’ favor. Lachat, 759 A.2d at 489. Thus, the first



____________________________________________


2 In limited circumstances, this Court has affirmed a contempt finding when
there is not a formal order entered into the docket. See, e.g., In re
Contempt of Cullen, 849 A.2d 1207 (Pa. Super. 2004) (indicating that a
personal phone call by the court and a hand-delivered letter specifying the
date and time to appear at a hearing constitutes an “order”); In re James,
470 A.2d 174 (Pa. Super. 1984) (indicating that an-over-the phone agreement
to appear in court at a certain time constitutes an “order”); Commonwealth
v. Worthy, 512 A.2d 39 (Pa. Super. 1986) (indicating that judge’s direction
at trial to continue questioning a witness instead of belaboring points already
established constitutes an “order”). These cases are inapposite.



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element for a finding of contempt is not met, as Grandparents did not have

notice of a specific order that they allegedly violated. Id.

       As this conclusion is dispositive, we need not address the merits of

Grandparents’ second issue.3 Accordingly, we reverse.

       Order reversed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2017




____________________________________________


3 Appellee suggests that Grandparents’ failure to notify him or the court of
Child’s relocation suggests wrongful intent. As Appellee does not have custody
rights, he is not entitled to notice. See 23 Pa.C.S. § 5337(c). Nevertheless,
Grandparents were required to confirm relocation with the court. 23 Pa.C.S.§
5337(e). Grandparents’ failure to notify the court is troublesome. However,
in accordance with the statute, we note that all parties with custody rights
agreed to Child’s relocation. 23 Pa.C.S. § 5337(b)(1).

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