J.M. v. K.W.
164 A.3d 1260
Pa. Super. Ct.2017Background
- Mother and Father entered a stipulated custody arrangement in March 2014 giving Mother primary physical custody pending trial; the trial court’s March 25, 2014 scheduling order prohibited relocation without complying with 23 Pa.C.S. § 5337.
- Mother filed notice of a proposed relocation one month later, but in May 2015 moved with the two children from Schuylkill County to Lancaster County before obtaining court approval; Father objected.
- Father filed a petition for special relief and contempt alleging unauthorized relocation and that Mother enrolled the son in preschool without Father’s consent.
- On December 24, 2015 the trial court found Mother in contempt, awarded Father $2,214 in counsel fees, and as a contempt sanction changed primary physical custody to shared custody until trial.
- Mother appealed, challenging (1) procedural defects in the contempt petition/notice, (2) that her move was not a prohibited “relocation,” (3) contempt for enrolling the child absent a legal-custody order, and (4) the propriety of modifying custody as a contempt sanction.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| 1. Procedural notice under Pa.R.C.P. 1915.12 | Petition lacked the required "Notice and Order to Appear" and did not attach/identify the order allegedly violated — so due process violated. | Contempt petition and proposed order sought custody and Mother received actual notice of the contempt hearing; she appeared and defended. | Petition failed to include the Rule 1915.12(a) notice/order; but Mother had actual notice of the contempt hearing and the relocation claim, so contempt finding on relocation stands despite the procedural defect as to modification notice. |
| 2. Contempt for relocation without court approval | Move did not significantly impair Father’s custodial rights and some custody contact actually increased; therefore § 5337 procedures were inapplicable. | March 25 scheduling order expressly required compliance with § 5337; Mother filed notice but moved before court approval, violating the order. | Mother was in contempt for relocating without complying with § 5337 and the court’s scheduling order. |
| 3. Contempt for enrolling child in preschool | No legal-custody order existed allocating decision-making authority, so enrolling the child was not a violation of any court order. | Enrollment interfered with Father’s custody interests and supported contempt finding. | Trial court erred: enrollment did not violate any existing legal-custody order, so contempt finding on that basis is reversed; fee award remanded for recalculation. |
| 4. Modification of custody as a contempt sanction | Mother lacked particularized notice that custody modification would be sought at contempt hearing; altering custody as punishment violated due process and cannot be a contempt sanction. | Father’s petition sought custody relief and attached a proposed order granting him primary custody until further order. | It is improper to modify custody as a contempt sanction absent particularized notice that custody would be at issue and a best‑interest determination; the custody sanction awarding shared physical custody is vacated and remanded. |
Key Cases Cited
- G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (interim custody order generally not appealable)
- Stahl v. Redcay, 897 A.2d 478 (Pa. Super. 2006) (finding of contempt imposing a sanction is appealable)
- Hopkins v. Byes, 954 A.2d 654 (Pa. Super. 2008) (elements required to prove contempt)
- P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super. 2012) (notice requirements when contempt proceeding implicates custody)
- C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012) (whether a move is a ‘‘relocation’’ depends on significant impairment to the non‑relocating party)
- Langendorfer v. Spearman, 797 A.2d 303 (Pa. Super. 2002) (custody cannot be altered in a contempt proceeding without notice and proper motion to modify)
- Everett v. Parker, 889 A.2d 578 (Pa. Super. 2005) (due process requires formal notice when custody is at stake in contempt proceedings)
- Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. 1998) (violation of a custody order can support contempt but not be used as sole basis to change custody)
- Choplosky v. Choplosky, 584 A.2d 340 (Pa. Super. 1990) (special relief under Rule 1915.13 may justify temporary custody adjustments)