G.A. v. D.L.
72 A.3d 264
| Pa. Super. Ct. | 2013Background
- Parents share custody of an 8-year-old daughter; a March 8, 2011 custody order gave Mother primary physical custody and Father partial physical custody.
- After a series of contempt petitions by both parties, the parties entered agreements in March and August 2012 addressing suspensions, counseling, and supervised reunification sessions.
- An August 7, 2012 court order (entered from the parties’ August agreement) required Mother to make Child available and transport her to reunification counseling with Father.
- Father filed a contempt petition on August 20, 2012 alleging Mother refused to bring Child to court-ordered counseling and sought contempt relief, attorney’s fees, and compliance with the August 7 order.
- A hearing was held October 15, 2012; Mother did not appear (her counsel had received notice but did not notify her). Father’s unrebutted testimony showed he attended sessions and Mother did not bring Child.
- On October 18, 2012 the trial court found Mother in contempt, ordered $1,000 in attorney fees, and reinstated the prior March 8, 2011 custody order. Mother appealed.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether mother could be adjudicated in contempt in absentia because she lacked service/notice | Mother: No valid service of the contempt petition and no notice of hearing; contempt in absentia improper | Father: Petition and hearing notice were properly served on Mother’s attorney of record; attorney’s failure to notify client does not void service | Court: Service on counsel was valid under Pa.R.C.P. 440; contempt finding affirmed |
| Whether the court could modify custody as a sanction by reinstating the March 8, 2011 order without a custody petition or notice | Mother: Modification was impermissible because no petition to modify custody was filed and she had no notice or chance to oppose | Father: Requested reinstatement at hearing (via counsel); argued reunification failed and prior order should resume | Court: Vacated reinstatement as an improper custody modification without a filed petition and notice; modification reversed |
Key Cases Cited
- Everett v. Parker, 889 A.2d 578 (Pa. Super. 2005) (service on an attorney who never appeared in the relevant case is deficient)
- Langendorfer v. Spearman, 797 A.2d 303 (Pa. Super. 2002) (custody may not be modified as a contempt sanction absent a petition, notice, and opportunity to be heard)
- P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super. 2012) (due process requires notice before custody is modified; clarifying/modifying custody at contempt hearing without notice violates rights)
- Collins v. Collins, 897 A.2d 466 (Pa. Super. 2006) (appellate standard in custody cases: abuse of discretion review; best interests of the child govern)
- Royal Bank of Pennsylvania v. Selig, 644 A.2d 741 (Pa. Super. 1994) (each court is exclusive judge of contempts against its process)