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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.T.W.,                                       IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                 Appellee

                       v.

M.J.T.,

                 Appellant                    No. 1809 WDA 2014


              Appeal from the Order entered October 2, 2014,
              in the Court of Common Pleas of Mercer County,
                      Civil Division, at No: 2007-3764

BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED MAY 12, 2015

      M.J.T. (Father) appeals from the order entered October 2, 2014, in the

Court of Common Pleas of Mercer County, which found him in contempt of a

January 31, 2012 custody order, and which temporarily awarded additional

custodial time of his minor daughter, A.A.J.T. (Child), to Child’s mother,

S.T.W. (Mother). We affirm in part and vacate in part.

      On December 26, 2007, the trial court entered an order awarding

Mother and Father shared legal and physical custody of Child.     The order

specified that the parents would continue to share physical custody “as per

their current practice.” Order, 12/26/07, at 1. On June 24, 2008, an order

was entered modifying the prior custody order by providing that the parents

“shall share custody on an alternating weekly basis with the exchange time

being 7:00 p.m. each Sunday.” Order, 6/24/08, at 1. On January 31, 2012,
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an order was entered amending the June 24, 2008 order by providing that

“the parties’ shared physical custody shall run from 8:00 a.m. on Tuesday

through 8:00 a.m. on Tuesday . . . .”       Order, 1/31/12, at 1.   The order

further provided, in relevant part, as follows.

      2. The natural father shall not pick the child up from school
      unless the school calls indicating there is no one there to pick
      the child up. The prohibition only applies to those periods of
      time when the natural mother is exercising physical custody. If
      the natural father is required to pick up the child during the
      mother’s period of custody, he shall return the child to the
      natural mother at the conclusion of her work, which is typically
      6:30 p.m.

Id. at 1-2.

      On August 21, 2014, Mother filed a pro se petition for civil contempt

against Father, in which she alleged that Father “[n]ever [b]rings [C]hild

back on time,” that Father does not answer his phone, and that she was

having difficulty locating Child. Petition for Civil Contempt for Disobedience

of Custody Order, 8/21/14, at 1-2. A hearing was held on October 1, 2014,

during which the court heard the testimony of Mother and Father. Following

the hearing, on October 2, 2014, the court entered its order finding Father in

contempt and awarding Mother periods of make-up time with Child.

Specifically, the order provided that Mother’s next four periods of custody

would be for two weeks, rather than the normal one week.            The court

clarified its order by noting that, after Mother’s make-up time, “the regular

custody schedule shall remain in full force and effect.” Order, 10/2/14, at 1.




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On October 31, 2014, Father timely filed a notice of appeal, along with a

concise statement of errors complained of on appeal.

      Father now raises the following issue on appeal. “Did the trial court

err in finding [Father] in contempt of court and in modifying the custody

order?” Father’s brief at 4.

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

review.

            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).

      To sustain a finding of civil contempt, the complainant must
      prove certain distinct elements by a preponderance of the
      evidence: (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.

P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation

omitted).

      Instantly, Father concedes that he is obligated under the January 31,

2012 custody order to return Child to Mother’s care after she returns from

work during her custodial periods. Father’s Brief at 11-12. However, Father

contends that he should not be held in contempt because the subject order

did not obligate him to ensure that a custody transfer actually takes place.

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Id.   Father also asserts that it was impossible for him to comply with the

order because Mother refused to communicate with him over the phone. Id.

at 12-13. Further, Father argues that the trial court erred by modifying the

January 31, 2012 custody order without considering the best interest of

Child.    Id. at 13-14.   Father requests that this Court award him with the

custody time that he missed as a result of the trial court’s contempt order.

Id. at 14.1

         In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court explained

that it found Father in contempt because he kept Child from Mother for two

months, and that “[b]y definition, that is willful contempt.”       Trial Court

Opinion, 11/3/14, at 2. The court also explained that it did not modify the

subject custody order, but merely provided Mother with “make-up time

equal to the time [Mother] lost as a result of [Father’s] contempt.” Id.



1
  We note that the trial court’s modified custody schedule lasted only until
December of 2014, and that the parties are, presumably, once again
adhering to the custody schedule outlined in the January 31, 2012 order.
However, this does not require that we dismiss Father’s appeal as moot.
See Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa. Super. 2011), appeal
denied, 34 A.3d 833 (Pa. 2011). In Warmkessel, the appellant was held in
contempt and incarcerated as a result of his failure to pay child support. Id.
at 411. By the time this Court reviewed his appeal, the appellant had been
released from incarceration. Id. at 413. Nonetheless, the Court addressed
the merits of the appellant’s claims. We reasoned that, “Appellant is subject
to a continuing support order where Appellant might once again face civil
contempt proceedings raising the issue of credit for time served, and other
similarly situated defendants might raise the same claim. Therefore, this
matter qualifies as an exception to the mootness doctrine.” Id. (citations
omitted). This rationale also applies to the instant matter, as Father
remains subject to the January 31, 2012 custody order.


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     After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion by finding Father in contempt.

During the October 1, 2014 contempt hearing, Mother testified that Father

picks up Child from school on Tuesdays and Fridays during Mother’s

custodial periods.   N.T., 10/1/14, at 5.   Mother then picks up Child at

Father’s house at about 6:30 p.m. Id. at 3.2 However, Mother explained

that she has had difficulty picking up Child on time and that, “every so

often,” she is unable to retrieve Child until “maybe 8:00 or 9:00 at night,”

because Child is not at Father’s home, and Child will not answer her phone.

Id. Mother stated that this has happened “maybe 20” times. Id.

     Mother further testified that she “practically didn’t see” Child during

August and September of 2014. Id. at 4. Specifically, Mother stated that

she saw Child on July 29, 2014, and that she did not see Child again until

“the first week of school.” Id. at 3. Mother further stated that Father did

not answer his phone when she attempted to call him, and that she tried

calling from different numbers and having her mother try to contact Father

as well. Id. at 4. Mother explained that she has even called 911 in an effort

to get Child back. Id.

     On cross-examination, Mother admitted that she changed her phone

number in “the last several months,” but she denied that Father has been

unable to contact her due to her different number. Id. Mother also noted

2
  Mother noted that Child walks to her paternal grandmother’s house on
Wednesdays and Thursdays, and that Mother picks Child up there. N.T.,
10/1/14, at 5.
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that she and Father are not on speaking terms, and that all custody

exchanges are coordinated through Child, who has a cell phone. Id. at 6.

      Father testified that he has been unable to contact Mother because she

changed her phone number, and did not provide him with her new number.

Id. at 7.   Father stated that he has had the same phone number since Child

was born, but that Mother has not sent him a text message or left him a

voicemail since “Junish.” Id. at 8. Father further explained that Child has a

difficult time getting a response from Mother when she tries to contact her.

Id. at 9. Father contended that Mother had regular custody of Child in July

of 2014, but that, after July, Mother did not attempt to pick up Child. Id. at

9-10. Father stated that normally, Mother would “pull up to the house after

work, blow the horn, call the phone and get [Child].       That did not take

place.” Id. at 10-11. Father stated that, if Mother did attempt to retrieve

Child, she “made no attempt to contact me.” Id. at 11.

      Father further testified that Mother saw Child in August of 2014 “down

at my niece’s and nephew’s house,” but that Mother did not have custody of

Child during that month. Id. at 12. Father also explained that Mother had

custody of Child for a few days during September, about a week before the

contempt hearing. Id. at 12-13. Father stated that Mother did not pick up

Child the week of the contempt hearing.     Id. at 13. According to Father,

Mother did not call him, and did not come to his house. Id.

      Thus, the record confirms that Mother did not have custody of Child for

approximately two months. While we agree with Father that the January 31,

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2012 custody order does not obligate him to ensure that custody exchanges

actually take place, it is undisputed that Father had a duty to return Child to

Mother during her periods of custody. Mother testified that Father ignored

her attempts at communication during these times, and thereby violated the

order by preventing her from exercising her custodial rights.     In addition,

while Father testified that Mother did not attempt to exercise her periods of

physical custody, and that he was unable to contact Mother due to her

changed phone number, the trial court was free to reject Father’s testimony

as incredible. Accordingly, we affirm the portion of the trial court’s October

2, 2014 order finding Father in contempt.

      However, we reach a different result with respect to the portion of the

court’s order awarding Mother make-up time with Child.         We agree with

Father that, to the extent the trial court “modified” the custody order by

temporarily awarding Mother additional custodial time, it erred by failing to

consider the best interest of Child. See S.W.D. v. S.A.R., 96 A.3d 396, 403

(Pa. Super. 2014) (observing that courts must always consider the best

interest of the child when considering an award or modification of custody).

Moreover, even if the trial court is correct that it did not “modify” the

custody order, but merely sanctioned Father for his contempt, the court still

erred by imposing an impermissible sanction under the Child Custody Act.

The Act provides, in relevant part, as follows.




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     (g) Contempt for noncompliance with any custody order.--

           (1) A party who willfully fails to comply with any
           custody order may, as prescribed by general rule, be
           adjudged in contempt. Contempt shall be punishable
           by any one or more of the following:

                 (i) Imprisonment for a period of not
                 more than six months.

                 (ii) A fine of not more than $500.

                 (iii) Probation for a period of not more
                 than six months.

                 (iv) An order for nonrenewal, suspension
                 or denial of operating privilege under
                 section 4355 (relating to denial or
                 suspension of licenses).

                 (v) Counsel fees and costs.

           (2) An order committing an individual to jail under
           this section shall specify the condition which, when
           fulfilled, will result in the release of that individual.

23 Pa.C.S.A. § 5323(g).

     When interpreting a statute,

     we are constrained by the rules of statutory interpretation,
     particularly as found in the Statutory Construction Act. The goal
     in interpreting any statute is to ascertain and effectuate the
     intention of the General Assembly. Our Supreme Court has
     stated that the plain language of a statute is in general the best
     indication of the legislative intent that gave rise to the statute.
     When the language is clear, explicit, and free from any
     ambiguity, we discern intent from the language alone, and not
     from arguments based on legislative history or “spirit” of the
     statute. We must construe words and phrases in the statute
     according to rules of grammar and according to their common
     and approved usage . . . .



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Weiner v. Fisher, 871 A.2d 1283, 1285-86 (Pa. Super. 2005), appeal

denied, 936 A.2d 41 (Pa. 2007) (citations and quotation marks omitted).

      Here,   Section    5323(g)(1)   indicates   that   “[c]ontempt   shall   be

punishable by any one or more” of the sanctions listed at Sections

5323(g)(1)(i)-(v).      23 Pa.C.S.A. § 5323(g)(1).       Critically, a temporary

modification of custody is not listed as one of the permissible sanctions

under Section 5323(g)(1).       Further, nothing in the language of Section

5323(g)(1) suggests that a court is permitted to employ sanctions outside of

those enumerated above.        Thus, based on the plain and unambiguous

language of the Act, we conclude that the trial court erred by awarding

Mother with additional custodial time as a sanction for Father’s contempt. 3


3
  We note that this Court has held that “a lower court may not modify a
custody order as a sanction for contempt of such an order, unless a petition
to modify custody has been filed and all parties have been provided with
notice and opportunity to prepare and advocate their respective positions.”
G.A., 72 A.3d at 269-70 (citing Langendorfer v. Spearman, 797 A.2d 303
(Pa. Super. 2002); see also P.H.D., 56 A.3d at 706; Choplosky v.
Choplosky, 584 A.2d 340 (Pa. Super. 1990).                    However, G.A.,
Langendorfer, P.H.D., and Choplosky all involved situations where a trial
court modified a custody order permanently. In addition, this Court’s
holding in Choplosky, from which its later holdings in Langendorfer,
P.H.D., and G.A. were derived, was specifically limited to permanent
modifications of custody. See Choplosky, 584 A.2d at 342-43 (explaining
that the trial court erred by permanently modifying custody following a
contempt hearing, but suggesting that a temporary modification may be
permissible); see also Langendorfer, 797 A.2d at 308 (“Father contends
that the court may not permanently modify a custody order without having
a petition for modification before it. We agree.”) (citation omitted, emphasis
added); P.H.D., 56 A.3d at 706 (“We have expressly held that a trial court
‘may not permanently modify a custody order without having a petition for
modification before it.’”) (quoting Langendorfer, 797 A.2d at 308)
(emphasis added). Thus, these cases are distinguishable from the instant
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     Accordingly, we vacate the portion of the trial court’s order temporarily

adjusting the parties’ custody schedule. The court’s order is affirmed in all

other respects.

     Order affirmed in part and vacated in part. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2015




matter, where the trial court only modified the parents’ custody schedule
temporarily.
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