Case Information

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 J.M. IN THE 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 at No(s): S- 523 -2014 BEFORE: BOWES, OTT AND PLATT,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

FILED OCTOBER 24, 2016

On December 24, 2015, the found K.W. ( "Mother ") in temporary custody order stripped her primary physical custody of the parties' then -four -year -old -son, B.M., three -year -old contrast my esteemed colleagues, I believe daughter, V.M. improper. Accordingly, I respectfully dissent from aspect of the majority's decision.

Preliminarily, I agree with my learned colleagues' determination that abuse its discretion finding Mother contempt for surreptitiously relocating with parties' children from Schuylkill County, Pennsylvania Lancaster County. Likewise, agree majority's * Retired Senior Judge assigned to the Superior Court.

conclusions that Mother not contravene an existing court order by placing B.M. the daycare of her choice, and remand is necessary to re- evaluate the award of counsel fees light of our reversal of this aspect of order. However, I reject majority's characterization of Mother's argument, which assails trial court for modifying an existing child custody order as for her contempt, as tantamount "[claim] challenges the interim order." Majority memorandum 5.

The majority is correct insofar it reiterates well- ensconced principle an interim custody order is not appealable. The rationale behind this precept is that, until the trial court has rendered its best -interest determination on the merits, interim custody order ephemeral and further modification upon petition.' However, from my subject perspective, the instant not an interim determination of the children's best interest, and Mother does not challenge the trial court's ' observe Father filed petition for custody on March 21, 2014, and record bears out of January 5, 2016, the trial court struck the case from the trial list postponed the custody trial, yet again, for preparation of updated custody evaluations. Thus, after approximately two years of litigation, still has confronted Father's custody complaint no date has been set for resolution of the custody matter will result final appealable custody addressing the children's best interest. Compare this situation with Pa.R.C.P. 1915.12(b) (c) regarding prompt disposition cases (generally trial should be scheduled within 180 days of the custody complaint shall commence within 90 days of the scheduling order).

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determination of custody per se. reality, case bar is finding of a concomitant sanction, which Mother correctly argues was entered contravention of our jurisprudence regarding the modification of custody a consequence of contempt.

While an order granting temporary or interim is interlocutory, it is beyond cavil a present finding of is final appealable when a sanction is imposed. Stahl v. Redcay, 897 A.2d 478 (Pa.Super. 2006). Accordingly, would address Mother's relating find that court's sanction impermissible.

It settled an adjudication of contempt is a proper basis to modify an existing custody arrangement. See Clapper v. Harvey, 716 A.2d 1271, 1275 (Pa.Super. 1998) ( "a mother's violation custody order may an appropriate foundation for finding contempt, but it cannot be basis for award of custody "); Rosenberg v. Rosenberg, 504 A.2d 350, 353 (Pa.Super. 1986) ( "A award should not used to reward or punish parent for good or bad behavior "). This Court has confronted several cases where the trial court awarded one party custody sanction for other party's contumacious conduct. See e.g. Langendorfer v. Spearman, 797 A.2d 303 (Pa.Super. 2002); Everett v. Parker, 889 A.2d 578, (Pa.Super. 2005); cf. Steele v. Steele, 545 A.2d 376 (Pa.Super. 1988) (noting it generally improper for modify custody arrangements without petition for modification before it).

J-A14036-16 The effect of this jurisprudence is a trial court's ability to alter custody as a contempt is restricted to circumstances where the responding party is given express notice custody will be at during the contempt proceeding.

Pursuant Pa.R.C.P. 1915.12(a), a contempt petition must include section entitled "Notice and Order Appear." The rule prescribes the form content of the notice and order to appear. Herein, Father's petition for contempt requested a modification of custody but it lacked the required notice order appear outlined by Rule 1915.12. As Father neglected to issue the required notice order appear, he not provide Mother notice the existing custody could modified a consequence of proceedings. Moreover, both the original scheduling order that issued and its revised order failed mention custody all.

In Everett, supra at 581, we explained, "When modification of sought by a custody contempt petitioner, the respondent must be given particular notice of that objective." In reaching determination, we Langendorfer, supra, when requirement stated applied modification of custody sought by contempt petitioner, the respondent must given notice of objective, both body of Everett, father filed pro se petition to appear. contempt petition against mother who maintained primary his child. While third page petition requested change in

J-A14036-16 the custody arrangement, the father failed to serve the petition on Mother Instead, he mailed copy of the petition an attorney who properly. represented mother during prior dependency proceedings the family's CYS caseworker. Neither the mother nor her former attorney, who never entered an appearance in the custody dispute, appeared at the hearing. Nevertheless, based upon the caseworker's statement that she had provided the mother with actual notice of the date time of the hearing, court determined the mother received sufficient notice of the father's petition. Accordingly, it held the contempt hearing ex parte, found mother contempt, modified the existing custody by awarding the father primary custody of his son. On appeal, we vacated the contempt order.

As it relates case at bar, the Everett Court concluded violated the mother's right to due process by modifying the custody order part of the contempt proceedings because mother was denied specific notice would at stake the proceedings. Noting mother was properly served with contempt petition implicated the custody arrangement or the notice of the scheduled hearing, we determined caseworker's notification mother concerning the time date of the proceedings insufficient. Specifically we reasoned, "Formal notice and opportunity heard are fundamental components of due process

J-A14036-16 when a person may deprived in a legal proceeding of a liberty interest, such physical freedom, or a parent's custody her child." Everett, supra 580.

As noted, we confronted similar factual scenario in Langendorfer, supra, wherein the mother, who maintained partial physical custody of her son during the summer, filed contempt petition against father asserting he had violated the existing custody arrangement. Notably, Mother's contempt petition failed to include any request transfer scheduling the hearing notify either party would during the proceedings. Moreover, there no indication in record trial court consolidated the mother's contempt petition father's previously filed motion temporarily adjust the custody schedule. Following hearing, the awarded mother sole legal and physical custody of the child. However, relying upon the precept discussed Choplosky v. Choplosky, 584 A.2d 340, 342 (Pa.Super. 1990), "without motion modify visitation rights before it, may not permanently alter the visitation rights of [the] parties," this Court vacated the custody on appeal violating father's right to due process. We reiterated Langendorfer Court's rationale P.H.D. v. R.R.D., A.3d 702, 707 -708 (Pa.Super. 2012) concluded, "As Langendorfer, Father here had no

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notice that custody at issue. Neither the contempt petition nor notice and order to appear held out the prospect of custody modification."

Thus, the foregoing discussion of relevant binding authority highlights, trial court may transfer physical custody at conclusion of a contempt hearing only when the respondent has been given particular notice of that objective both body of the contempt petition the notice It is an abuse discretion for to appear. transfer custody from one party the other if the parties lack advance notice that is be issue at the hearing.

Instantly, Mother contends that trial court violated her due process rights by modifying the custody order concomitant with the contempt adjudication. The crux of Mother's argument that Father's petition provided insufficient notice that custody would during the proceedings. She continues by awarding custody Father without affording notice the existing custody order could modified, court denied her the opportunity to defend against modification.

Father counters Mother had notice he sought custody result of her alleged contempt. He points out his petition entreated the grant him their children proposed he attached his petition provided, "Plaintiff granted primary custody until further order of court." Petition for Special Relief Contempt, 9/23/15, at unnumbered page 2, and attached proposed order. Thus, Father contends

J-A14036-16 that Mother had the opportunity to prepare for the contempt proceedings and to advocate her position vis -à -vis the custody request. While the majority declines to address this issue, I would reject Father's claim that an averment in his petition and one line in the proposed order for relief satisfied the requirements we outlined in Langendorfer, supra and its progeny.

As in Langendorfer, there was no petition to modify custody before the trial court during the contempt proceedings, Father neglected to provide the notice appear pursuant Rule 1915.12(a), the scheduling orders issued did not disclose the trial court would address matter physical custody during proceeding. While Father included custody - related prayer for relief his contempt petition proposed he submitted for the court's approval, Mother was not provided the requisite specific notice both contempt petition attenuate orders directing her to appear her custody rights would at stake. See Everett, supra. As I believe that Father's notice Mother he sought modify the custody arrangement during the proceedings deficient, I would find that, absent notice of objective, the trial court erred modifying custody sanction. addition, I disagree majority's alternative conclusion that issued interim custody order pursuant court's authority under Pa.R.C.P. 1915.13. As preliminary matter, agree that,

J-A14036-16 under appropriate circumstances, a trial court may modify a custody order temporarily pursuant to Pa.R.C.P. 1915.13.2 See Choplosky, supra at 343, ( "special relief' may some cases appropriate (and necessary) where situation such that, for example, temporary modification of custody or visitation rights would preserve well -being of the children involved while the parties prepare to resolve more permanently the question of where and /or with whom the children should remain. "); 23 Pa.C.S. § 5323(b) ( "The interim award of to a party who has court may an standing ... the manner prescribed by Pennsylvania Rules Civil Procedure governing special relief matters. "). However, even to extent majority surmises trial court might have intended grant special relief pursuant Rule 1915.13, which it undoubtedly authorized to do, enter effect. Rule 1915.13 provides follows:

At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include but not limited award of temporary custody, partial custody or visitation; issuance of appropriate process directing child or a party or person having physical custody of child brought before the court; direction person post security appear child when directed by the court or comply with any of the court.

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Presently, the certified record demonstrates that not intend to issue special relief pursuant Rule 1915.13. fact, contrary majority's supposition, the unquestionably granted Father shared physical as impermissible sanction for contempt. Indeed, the court explicitly directed, "[The] appropriate sanction [against Mother] is award shared custody until the parties undergo the trial." Trial Court Order, 12/24/15, unnumbered page 7.

For all the foregoing reasons, I respectfully dissent from portions of the majority decision quash the portion of the appeal relating improper modification physical imply the custody modification could have been prompted by Rule 1915.13. would address the merits of Mother's argument and vacate the trial court's contempt order it relates awarding Father join all other aspects of majority shared physical custody. I memorandum.

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