J.P.H. v. S.M.R.H.
J.P.H. v. S.M.R.H. No. 2067 EDA 2016
| Pa. Super. Ct. | Mar 31, 2017Background
- Parents divorced; shared legal custody by agreed order dated October 22, 2014; mother had primary physical custody of daughter A.H., parents split sons' custody.
- Agreed order addressed transportation for activities (limited to 2014–15 school year), use of Our Family Wizard (OFW), and prohibitions on disparaging the other parent.
- December 7, 2015 bench colloquy (transcript order) found Mother in contempt for not using OFW and for disparagement; trial court clarified that children should remain in current schools absent a signed written agreement and indicated future violations could lead to counsel-fee awards.
- Father filed a new contempt petition (March 15, 2016 / May 3, 2016 hearing) alleging Mother unilaterally enrolled A.H. in a different school (briefly, for two days), failed to transport children during her periods, and continued disparagement. Trial court found Mother in contempt of both the October 22, 2014 agreed order and the December 7, 2015 transcript order.
- Trial court awarded Father $7,171.25 in attorney’s fees as a civil-contempt sanction, payable $300/month; Mother appealed arguing lack of proper written modification/order, defective service/notice, mootness of the school-change violation, and improper fee award.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father / Trial Ct.) | Held |
|---|---|---|---|
| 1. Whether contempt was improperly based on the Dec. 7, 2015 transcript as a custody modification not reduced to a written order | Dec. 7, 2015 transcript modified custody and required a separate written order under R.L.P.; no proper written order = no contempt | The Dec. 7, 2015 transcript did not change custody; it clarified and reinstated existing terms of the Oct. 22, 2014 order | Court: transcript was a clarification, not a custody modification; contempt valid as based on both the written agreed order and the transcript clarification |
| 2. Whether the court erred issuing a transcript order under Pa.R.C.P. 1915.7 without party agreement | Rule 1915.7 requires parties’ agreement/consent to enter a transcript-based consent order | Rule 1915.7 is not applicable because there was no consent order or custody modification; contempt proceeded on prior written order and court clarification | Court: Rule 1915.7 inapplicable; no error in issuing transcript order or relying on it for contempt findings |
| 3. Whether the school-change violation was moot because A.H. was returned after two days | Mother acted briefly and corrected the change before Father filed the petition; thus no ongoing violation to punish | Mother’s conduct was volitional and required Father’s counsel intervention to reverse; prior court warning makes sanction appropriate | Court: violation was volitional and intentional despite short duration; not moot; contempt proper |
| 4. Whether awarding counsel fees was improper absent a specific written contempt order or sufficient notice | Fee award is punitive/unsupported because there was no specific written order under R.L.P. or § 5323 detailing prohibited conduct | Trial court warned Mother at Dec. 7 hearing it could award fees for future violations; fees are proper to compensate innocent party for costs caused by contemnor’s noncompliance | Court: fee award permissible as civil-contempt sanction to compensate Father; Mother had notice and earlier warning; award affirmed |
Key Cases Cited
- Garr v. Peters, 773 A.2d 183 (Pa. Super. 2001) (standard of review for contempt and deference to trial court discretion)
- R.L.P. v. R.F.M., 110 A.3d 201 (Pa. Super. 2015) (custody modifications must be entered as separate written order or separate section of the opinion)
- Harcar v. Harcar, 982 A.2d 1230 (Pa. Super. 2009) (attorney fees may be awarded as sanction for contempt to compensate injured party)
- Lachat v. Hinchcliffe, 769 A.2d 481 (Pa. Super. 2001) (elements for civil contempt: notice of order, volitional act, wrongful intent; order must be definite, clear, specific)
- P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super. 2012) (distinguishes prohibited imposition of broad new restrictions via a "clarification" that functions as a custody modification)
- Rhoades v. Pryce, 874 A.2d 148 (Pa. Super. 2005) (attorney fees may be assessed where noncompliance causes adversary to incur fees)