J.M. v. K.W.
76 MDA 2016
| Pa. Super. Ct. | Oct 24, 2016Background
- Father filed a custody complaint (Mar 20, 2014); parties entered a temporary custody stipulation giving Mother primary physical custody and scheduled interim orders prohibiting relocation without compliance with the Custody Act (23 Pa.C.S.A. § 5337).
- Mother filed a notice of proposed relocation (Apr 25, 2014) to move the children from Pottsville (Schuylkill County) to Lancaster; Father objected and the court ordered custody and home evaluations.
- Mother moved to Lancaster before the court approved the relocation and enrolled the son (B.M.) in preschool; Father filed a petition for special relief and contempt alleging relocation without permission, cohabitation, and unauthorized school enrollment.
- The trial court held a December 8, 2015 hearing, found Mother in contempt for relocating and for attempting to conceal the move, awarded interim shared legal and physical custody as a sanction, and awarded Father $2,214 in attorney’s fees; it denied payment for a private detective.
- Mother appealed, challenging the contempt findings, the contempt procedure, the preschool enrollment sanction, and the sufficiency of the orders’ relocation language; the Superior Court considered contempt issues but quashed the challenge to the interim custody award as non-appealable.
Issues
| Issue | Mother's Argument | Father's Argument | Held |
|---|---|---|---|
| 1. Notice of contempt hearing/procedural defect | Petition lacked required notice and attached/ referenced order per Pa.R.C.P. 1915.12 | Petition and proposed order placed Mother on notice of contempt claims and requested relief; Mother appeared and was heard | No error — procedural due process satisfied; Mother had notice and opportunity to be heard |
| 2. Contempt for relocation | Move from Schuylkill to Lancaster was not a “relocation” impairing Father’s custodial rights and existing orders lacked explicit relocation language | Scheduling orders expressly prohibited relocation without complying with §5337; Mother filed notice but moved before court approval and concealed the move | No error — contempt upheld for relocating without court approval in violation of scheduling orders and §5337 |
| 3. Contempt for enrolling child in preschool | Orders did not address legal custody; Mother could place child in daycare during her custodial time without violating any order | Father contended enrollment was a major decision requiring notice/consent | Reversed — no court order governed legal custody/education, so contempt for preschool enrollment was an abuse of discretion |
| 4. Interim custody sanction appealability | Mother challenges conversion from primary custody to interim shared custody as sanction | Trial court treated shared custody as temporary sanction pending trial under Pa.R.C.P. 1915.13 | Portion of appeal challenging interim custody quashed as non-appealable (interim custody not final) |
Key Cases Cited
- Stahl v. Redcay, 897 A.2d 478 (Pa. Super. 2006) (order including present contempt finding and sanctions is immediately appealable)
- Garr v. Peters, 773 A.2d 183 (Pa. Super. 2001) (scope of appellate review of contempt is narrow; great deference to trial court)
- Hopkins v. Byes, 954 A.2d 654 (Pa. Super. 2008) (party must violate a court order to be in contempt; complaining party bears preponderance burden)
- G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (custody order is final and appealable only if entered after merits hearings and intended as complete resolution)
- Hrinkevich v. Hrinkevich, 676 A.2d 237 (Pa. Super. 1996) (portion of appeal challenging interim or nonfinal orders must be quashed)