J.M. v. K.W.
164 A.3d 1260
Pa. Super. Ct.2017Background
- Mother (K.W.) and Father (J.M.) share two young children; after separation Father filed for custody and parties entered a stipulated custody arrangement giving Mother primary physical custody pending trial.
- Trial court issued a March 25, 2014 scheduling order requiring compliance with 23 Pa.C.S. § 5337 (relocation procedures) and prohibiting relocation without court approval.
- Mother filed notice of a proposed relocation to Lancaster County but moved with the children to Lancaster in May 2015 before court approval and later enrolled son B.M. in a Lancaster-area preschool.
- Father filed a petition for special relief and contempt; after a hearing the trial court found Mother in contempt, awarded Father $2,214 in attorney fees, and (as a contempt sanction) reduced Mother’s primary physical custody to shared custody until trial.
- Mother appealed. The Superior Court held the contempt finding for relocation valid, reversed the contempt finding relating to preschool enrollment, and vacated the custody modification as an improper contempt sanction, remanding for recalculation of fees and expedited custody proceedings.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether Mother was adjudicated in contempt without required Rule 1915.12 "Notice and Order to Appear" formalities | Contempt petition lacked required notice/order and did not attach or reference the order she allegedly violated | Petition sought contempt and requested custody; Mother received actual notice of the petition and hearing and appeared | Contempt adjudication for relocation upheld despite procedural defects as Mother had actual notice of petition and hearing; but Rule 1915.12 defects meant custody modification was improper without particular notice |
| Whether Mother’s move constituted a prohibited "relocation" under § 5337 (and thus contempt) | Move did not significantly impair Father’s custodial rights; relocation language was not in the custody order itself | Mother gave notice of proposed relocation, then moved before approval, violating the scheduling order requiring § 5337 compliance | Mother’s unilateral move violated the March 25, 2014 order requiring § 5337 compliance; contempt for relocation sustained (court need not decide statutory relocation definition here because Mother initiated § 5337 procedures and then violated them) |
| Whether enrolling B.M. in preschool without Father’s knowledge was contempt for violating legal custody | No existing order allocated legal custody; enrollment occurred during Mother’s custodial time, so no order was violated | Father argued enrollment was unilateral decision affecting child’s welfare and a ground for contempt | Court reversed contempt finding on preschool enrollment — no existing court order on legal custody was violated, so essential element of contempt missing |
| Whether modifying physical custody to sanction contempt was permissible | Mother argued she lacked particularized notice that custody would be at issue and modification via contempt violated due process | Father noted his petition and proposed order sought custody and therefore provided notice | Court held it is improper to modify custody as a contempt sanction absent particularized notice that custody would be at issue and a best-interest determination; therefore the custody modification sanction was vacated |
Key Cases Cited
- Stahl v. Redcay, 897 A.2d 478 (Pa. Super. 2006) (finding contempt with sanction is appealable)
- G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (interim custody orders generally not appealable)
- Hopkins v. Byes, 954 A.2d 654 (Pa. Super. 2008) (elements required for civil contempt)
- P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super. 2012) (notice required when custody is implicated in contempt proceedings)
- C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012) (relocation analysis requires evidentiary hearing to determine significant impairment)
- Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. 1998) (violation of custody order may justify contempt but not custody transfer)
- Rosenberg v. Rosenberg, 504 A.2d 350 (Pa. Super. 1986) (custody awards should not be used to punish or reward parental behavior)
- Langendorfer v. Spearman, 797 A.2d 303 (Pa. Super. 2002) (custody may not be modified after contempt hearing absent proper notice that custody would be at issue)
- Everett v. Parker, 889 A.2d 578 (Pa. Super. 2005) (particularized notice in both petition and order to appear required when custody sought in contempt proceedings)
- Choplosky v. Choplosky, 584 A.2d 340 (Pa. Super. 1990) (special relief under Rule 1915.13 may permit temporary custody adjustments)