Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 J.M., [1] THE IN SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
K.W.,
Appellant No. MDA 2016 Appeal from the Order Entered December 24, 2015 in the Court of Common Pleas of Schuylkill County Civil Division No.: S- 523 BEFORE: BOWES, J., OTT, J., and PLATT, J.* FILED OCTOBER 24, 2016
MEMORANDUM BY PLATT, J.: K.W. (Mother) appeals from the order of the Court of Common Pleas of
Schuylkill County (trial court), entered December 24, 2015. order grants the petition for sanctions special relief filed J.M. (Father). The awarded Father counsel fees interim shared legal physical custody their son, B.M., born in May of 2011, their daughter, V.M., in November of (Children), where Mother previously had born exercised physical custody. affirm part, reverse part, quash part, remand the recalculation of the attorney fees award.
Father filed complaint March 20, On March 21, open court, the parties entered into stipulated order of temporary * Retired Senior Judge assigned to the Superior Court.
custody of the Children that provided Mother physical custody and established a schedule of partial custody for Father.
Several scheduling orders were entered specifically prohibited relocation, including the March 25, scheduling the custody (See Order, 3/25/14). On April 25, 2014, Mother filed a conference. counterclaim to the custody complaint a notice proposed in which proposed to relocate the Children from current residence Pottsville, Schuylkill County, to Lancaster, Lancaster County. Father filed a counter -affidavit objecting Mother's proposed relocation. On April 30, 2014, the court ordered a home evaluation completed by Joseph B. Sharis, Ph.D. Dr. Sharis recommended the parties share (See Report of Custody Conciliation Conference, 12/01/14, at custody. unnumbered page 2).
Father filed petition special relief which he asserted Mother had relocated to Lancaster, Pennsylvania, without trial court permission, she was cohabitating with male paramour, Petition for refuses agree the Children's school enrollment. Special Relief Contempt, 9/23/15, at pages [1] -2). The held hearing December Evidence presented at that hearing established had relocated Lancaster, (see N.T. Hearing, 57, 98 -99); relationship with another man, (see id. 9 -12); had enrolled B.M. preschool Father's
J-A14036-16 knowledge or consent, (see id. at 103). Based on evidence, the trial court, on December 24, 2015, entered an interim order of custody granting shared legal and to the parties, and granting Father's request for attorney fees.'
Mother filed timely notice of appeal and statement of errors complained of on on January 12, 2016. See Pa.R.A.P. 1925(a)(2)(i). The trial court entered opinion January See Pa.R.A.P. 1925(a).
Mother presents the following questions our review: I. Did the [trial] court err and abuse its discretion by
adjudicating [Mother] of court, where the petition for contempt did not contain the notice and order appear, as mandated by [Pa.R.C.P. 1915.12] and no which was allegedly violated either referenced the petition or attached the petition, as mandated Pa.R.C.P. 1915.12(b) (c)? II. Did [trial] court err abuse its discretion by
finding [Mother] of court as a result of her move from Pottsville, Schuylkill County, Pennsylvania Lancaster, Lancaster County, Pennsylvania, leave of court, where none of the existing custody orders contained the required "relocation" language, mandated under the Pennsylvania Rules of Civil Procedure laws of the Commonwealth of Pennsylvania, where [Mother's] move not relocation, which defined as: "a change residence of child which significantly impairs the ability of non -relocating party ' his petition, Father also asked trial court require Mother to pay cost of private detective. denied request. Father asked for, trial court granted reconsideration denial. The issue cost of private detective therefore before us.
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exercise custodial rights[, "] since [Mother's] move to Lancaster County did significantly impair [Father's] ability exercise his custodial rights, and he fact was receiving more time with his Children than the original custody order provided, and [Mother] and [Father] always chose the pick[ -]up and drop[ -]off location, and [Father] never missed any of his custodial time following [Mother's] move to Lancaster County, Pennsylvania? III. Did [trial] court err abuse its discretion by
finding [Mother] as a result of her enrolling preschool, allegedly [Father's] knowledge, [B.M.] permission or consent, where none custody orders which were then place contained "legal custody" provisions, and [B.M.] attending preschool only during the time when it was [Mother's] custodial period?
IV. Did [trial] court err abuse its discretion by specifically finding "an appropriate sanction (for contempt) is award shared custody until the parties undergo trial[, "] did [trial] court err abuse its discretion by imposing a sanction for contempt significant modification of the existing custody order, from custody order shared custody order?
(Mother's Brief, at 4 -5).2 first consider whether this properly before us. It well -
settled includes present finding of the imposition of sanctions immediately appealable. See Stahl v. Redcay, 897 A.2d (Pa. Super. 2006), appeal denied, 918 A.2d 747 (Pa. 2007). However, "a custody order will considered final appealable only if it both: 1) entered after has completed its hearings on merits; and 2) intended court constitute complete resolution Unnecessary capitalization removed.
J-A14036-16 custody claims pending between parties." G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996) (footnotes omitted).3
In this case, the December 2015 included finding of against Mother the imposition of sanctions. Order, 12/24/15, at unnumbered page 8). conclude Mother's questions about whether court properly found are properly before us. See Stahl, supra at 487. However, because an interim custody order not immediately appealable, any challenge court's temporary custody award not properly before us because court, at the time of entering those terms, contemplated they were not final, but only intended as temporary solution pending the custody trial. (See Trial Court Order, page ( "[T]he parties have pending trial. . . An appropriate sanction to award shared custody until . the parties undergo trial. "); see also G.B., supra Therefore, we quash portion of Mother's appeal challenges the interim custody order. See Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super. 1996) ( "We must quash portion of the which concerns spousal situation such one before us, trial court has inherent power issue interim order of custody. See Pa.R.C.P. 1915.13 ( "At any time after commencement of the action, the may application or its own motion grant appropriate interim or special relief. relief may include, but limited to, the award of temporary legal or physical custody[.] ... ") (emphasis added).
J-A14036-16 support[]" pending final divorce decree.). We will consider Mother's first three issues because they challenge the court's contempt findings.
It is well -settled that: The contempt power is essential the preservation of the court's authority and prevents the administration of justice from into disrepute. When reviewing appeal from a falling contempt order, the appellate court must place great reliance upon the discretion trial judge. On from court's order holding party contempt of court, our scope of review is very narrow. are limited determining whether trial court committed clear abuse of discretion.
Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001) (quotation marks citations omitted).
The gravamen of Mother's first issue not given proper notice of the contempt hearing and an opportunity be heard. (See Mother's Brief, at 22 -31). This issue does merit relief.
It well -settled that "[p]rocedural due process requires, at its core, adequate notice, opportunity heard, and chance to defend oneself before fair impartial tribunal having jurisdiction over the case." Garr, supra (citations internal quotation marks omitted).
In this case, Father's petition for special relief contained clear unambiguous language stating why he sought finding of relief he requested. first page of Father's petition a proposed order of court provides: [Father] granted custody until further of
court;
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2. the minor children shall enrolled school within the school district which [Father] resides; [Mother] shall pay all attorney fees and costs [Father]
3. incurred with respect [Mother] relocating, including any expense to establish [Mother's] relocation, any filing fees for [Father's] [p]etition, and any attorney fees and costs [Father] incurred establish [Mother's] relocation or to litigate issue of [Mother] relocating.
4. [Father] shall provide [Mother] statement of all fees and costs [Father] incurred establishing [Mother's] relocation, which fees and costs [Mother] shall pay to [Father] within thirty (30) days thereafter. Neither party shall subject the children persons they are
romantically interested until final [o]rder of custody is entered other parent informed identity of the romantic interest.
(Petition for Special Relief Contempt, at attached Order of Court). In addition, paragraph six of Father's petition put Mother on notice he seeking finding of contempt, reason for his request, the remedy he sought. Paragraph six states:
6. As Mother has relocated Father's knowledge or consent, Father seeks finding of or is otherwise violation of the Relocation Statute; that Father granted physical custody, or equally shared custody if Mother returns Pottsville, until further order of court, and an award of attorney fees costs. (Id. page 2 ¶ 6).
Father's petition sufficient put Mother notice he sought finding contempt for sanctions he sought that contempt. fact, observed court, "the record evidences [Mother] appeared [at hearing] with assistance of [c]ounsel
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vigorously contested Father's [p]etitions." (Order Opinion of Court, 1/26/16, at unnumbered page 2). Therefore, Mother's first issue, she did not receive proper notice and an opportunity be heard, lacks merit. See Garr, supra at 191. her second issue, maintains trial court erred
abused its discretion when it found she contempt for improperly relocating when moved from Schuylkill County to Lancaster County. Mother's Brief, at 31-38). This issue lacks merit.
"To contempt, party must have violated court Order, the complaining party must satisfy burden preponderance of the evidence." Hopkins v. Byes, 954 A.2d 655 (Pa. Super. 2008) (citation omitted).
Here, trial court observed, the scheduling orders Schuylkill County expressly state: "No relocation shall occur compliance with the obligation set forth Pennsylvania's custody statute Pa.C.S.[A. §] 5337." (Trial Court Order, page 3; see, e.g., Order, 3/25/14). Section 5337 of the Custody Act provides, pertinent part, that party wishing relocate must provide notice such intent prior moving, which any party entitled to receive notice may file objections. See Pa.C.S.A. § 5337(c), (d)(1). Further, "[n]o shall occur . approves the proposed relocation[]" after expedited unless . .
J-A14036-16 hearing matter. Pa.C.S.A. § 5337(b)(2); see Pa.C.S.A. § 5337(g)(1)
In this case, March 25, 2014 scheduling order expressly stated, letters, that no party may relocate complying with the bold mandates of section 5337 of the Custody Act. (See Order, 1). In compliance with section 5337(c) of the Act, Mother provided notice to Father of her intention relocate to Lancaster County. Notice of Proposed Location, 4/25/14). Thus, it appears that was fully aware that move from her then -residence Schuylkill County to Lancaster County relocation. However, contravention March 2014 order's express language that she comply with the entirety section 5337, Mother relocated before the trial court approved proposal. As observed trial court: . [I]t appears that although [Mother] following the . .
[C]ustody [A]ct filing notice of proposed relocation, she ultimately grew impatient with the delay the custody trial elected move before issue was heard by the court. Further[,] the credible evidence she denied relocating at recent support proceedings. It appears she took great pains to conceal had moved. She implied during hearing her address was to remain "confidential." . . . [Mother's] actions are completely contrary the proper orderly resolution of the pending custody matter. [Mother] followed the appropriate steps filing the notice of intent [Father] filed timely objection. parties have relocate. undergone evaluations scheduled. With this matter pending, [Mother] chose to relocate. . . She was . attempting to conceal her "new" address.
J-A14036-16 As such, despite her counsel's arguments that her actions do not constitute "relocation" further that has failed comply with any court order, [Mother] is contempt.
(Trial Court Order, at pages 6-7). agree with trial court's finding that contempt for failing to comply fully with the express terms of the scheduling orders. See 23 Pa.C.S.A. § 5337(b)(2). For her to argue now she was not in violation of court order because her move from Schuylkill to Lancaster County not disingenuous at best where she, herself, filed notice of her intent to relocate. (See Notice Proposed Relocation, 4/25/14). Therefore, we conclude court did err or abuse its discretion when it found Mother contempt for violating the court's order by relocating prior obtaining approval. See Hopkins, supra 655; Garr, supra Mother's second issue without merit.
In third issue, Mother complains trial court abused its discretion when it found she was contempt for enrolling B.M. preschool Father's knowledge or permission. Mother's Brief, at 43-44). support of her claim, Mother notes none of the orders entered prior Father's filing of his petition for contempt mentioned legal custody, let alone who will exercise it. (See id.).
Pursuant the Custody Act, "legal custody" defined "[t]he right make major decisions behalf of the child, including, but not limited to, medical, religious educational decisions." Pa.C.S.A. § 5322.
- - Here, our review of the certified record confirms that there was no court order in place addressing legal custody generally, or the educational decisions regarding B.M., specifically. Therefore, Mother in of any court order when she placed B.M. in daycare. Accordingly, we are constrained to conclude trial abused its discretion when it found Mother in contempt for placing B.M. in daycare. See Hopkins, supra 655; Garr, supra 189. Hence, we reverse the court's extent it finds Mother for enrolling B.M. preschool.
Finally, we observe our disposition this matter affects the amount of counsel fees to which Father entitled. Although the custody order grants Father total of $2,214.00, it unclear what portion of that amount incurred for the childcare issue, how much attributable issue of Mother's unauthorized relocation. Therefore, we remand for the re- calculation of Father's counsel fees award.
In sum, we affirm court's order extent it found contempt for relocating; reverse the court's order finding Mother contempt for placing B.M. preschool; quash portion of the addresses interim order shared legal custody. remand re- calculation of attorney fees to which Father entitled. Order affirmed part, reversed part, quashed part. Case remanded proceedings consistent with this decision. Jurisdiction relinquished.
Judge Ott joins the Memorandum.
Judge Bowes files Concurring Dissenting Memorandum. Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 10/24/2016
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