J.K. v. J.J.K.
539 MDA 2017
| Pa. Super. Ct. | Sep 26, 2017Background
- Mother filed for divorce and custody in October 2014 seeking legal and primary physical custody of two children (born 2004 and 2006).
- March 22, 2016: the court entered an agreed custody order giving shared legal custody and primary physical custody to Mother; Father received limited partial physical custody (alternating Saturdays, one weekday afternoon, and Sundays).
- November 1, 2016: court ordered Father to provide an updated medical report and a safety/suitability study of his new residence before custody could be modified.
- December 2016–January 2017: Mother petitioned for special relief and the court suspended Father’s partial custody until receipt of the study; the study was later received. Father then filed contempt and modification petitions asserting Mother blocked phone contact and denied visitation.
- February 24, 2017 custody conference: the court issued an order denying Father’s contempt petition (by agreement) but also modified the custody schedule without an evidentiary hearing; Father appealed.
- Superior Court decision: affirmed the contempt portion, vacated the custody modification because the parties did not agree to it and the court made the modification without conducting an evidentiary hearing under 23 Pa.C.S.A. § 5328(a).
Issues
| Issue | Father’s Argument | Mother/Trial Court’s Argument | Held |
|---|---|---|---|
| Whether the trial court abused discretion by modifying custody without evidence/hearing | Father argued no transcript existed, counsel told court parties weren’t in agreement and he wished to be heard; modification occurred without hearing and was unsupported by evidence | Trial court said parties agreed in chambers and counsel did not object or request testimony; therefore court acted within discretion to issue order | Court held modification was an abuse of discretion because transcript shows no agreement and §5328(a) factors require evidentiary hearing before changing custody |
| Whether the contempt order disposition was improper | Father challenged custody modification primarily; contempt portion was not appealed substantively | Mother and court treated contempt as resolved by agreement (withdrawal) | Superior Court affirmed the contempt disposition (not challenged on appeal) |
| Whether appeal was timely given docketing/notice issues | Father timely filed notice of appeal; argued procedural docketing issues triggered appeal period properly | Trial court claimed appeal was untimely based on its asserted entry date | Superior Court treated appeal as timely for judicial-economy reasons, admonished prothonotary for not complying with Pa.R.Civ.P. 236(b) |
| Whether court could insert its own custody terms when parties disagreed | Father argued court could not modify custody without §5328(a) analysis and hearing | Trial court asserted it inserted terms for expediency because case was longstanding and parties were directed to resolve or proceed to master | Court held court may not modify form of custody without considering §5328(a) via an evidentiary hearing unless parties consent |
Key Cases Cited
- V.B. v. J.E.B., 55 A.3d 1193 (Pa. Super. 2012) (standard of review for custody orders and requirement that evidentiary hearings support §5328 analysis)
- S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014) (court must consider §5328 factors when modifying form of custody; discrete custody issues are exempt)
- Frazier v. City of Philadelphia, 735 A.2d 113 (Pa. 1999) (entry of order and docket notice requirements under Pa.R.Civ.P. 236(b) determine appealability)