J.M. v. K.W.

164 A.3d 1260

J.M., Appellee

v.K.W., Appellant

No. 76 MDA 2016

Superior Court of Pennsylvania.

Argued March 21, 2017

Filed May 31, 2017

Jeffrey P. Paul, Lancaster, for appellant.

Richard A. Raiders, Robesonia, for appellee.

BEFORE: BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON, DUBOW, MOULTON AND SOLANO, JJ.

OPINION BY BOWES, J.:

K.W. ("Mother") appeals the December 24, 2015 order wherein the trial court held her in contempt and stripped her of primary physical custody of the parties' then-four-year-old-son, B.M., and three-year-old daughter, V.M. As the modification of physical custody is an improper sanction for contempt, we vacate the order and remand for further proceedings.

B.M. and V.M. were born of the marriage between Mother and J.M. ("Father"). After the parties separated, Father filed a child custody complaint on March 20, 2014. The following day, the parties entered a stipulated custody agreement that accorded Mother primary physical custody of the children pending the custody trial. As it relates to the present appeal, the trial court entered several orders, including a March 25, 2014 order scheduling the custody conference, which specifically prohibited relocation without prior court approval pursuant to 23 Pa.C.S. § 5337.

On April 25, 2014, Mother filed a counterclaim to the custody complaint and issued notice of her proposed relocation with B.M. and V.M. from her residence in Pottsville, Schuylkill County, to Lancaster, Lancaster County, approximately one-and-one-half hours away. Father filed a counter-affidavit objecting to Mother's proposed relocation. However, prior to obtaining the trial court's authorization under § 5337, Mother relocated with the children to Lancaster during May 2015, and she purchased property in that county two months later.

Father responded to the move by filing a petition for special relief and contempt. During the contempt hearing, Father established that Mother had relocated to Lancaster without prior court approval and enrolled B.M. in a Lancaster-area preschool without Father's knowledge or consent. On December 24, 2015, the trial court entered the above-referenced order that found Mother in contempt, and, as a sanction, reduced her custodial rights from primary physical custody of B.M. and V.M. to shared custody. The order was to remain in effect until the underlying custody dispute was resolved. The trial court also awarded Father $2,214.00 in attorney fees.

On January 12, 2016, Mother filed a timely notice of appeal and statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court issued its Rule 1925(a) opinion on January 26, 2016.

Mother presents the following questions for our review:

I. Did the [trial] court err and abuse its discretion by adjudicating [Mother] in contempt of court, where the petition for contempt did not contain the notice and order to appear, as mandated by [ Pa.R.C.P. 1915.12 ] and no order which was allegedly violated was either referenced in the petition or attached to the petition, as mandated by Pa.R.C.P. 1915.12(b) and (c) ?

II. Did the [trial] court err and abuse its discretion by finding [Mother] in contempt of court as a result of her move from Pottsville, Schuylkill County, Pennsylvania to Lancaster, Lancaster County, Pennsylvania, without leave of court, where none of the existing custody orders contained the required "relocation" language, as mandated under the Pennsylvania Rules of Civil Procedure and the laws of the Commonwealth of Pennsylvania, and where [Mother's] move was not a relocation, which is defined as: "a change in a residence of a child which significantly impairs the ability of a non-relocating party to exercise custodial rights[,"] since [Mother's] move to Lancaster County did not significantly impair [Father's] ability to exercise his custodial rights, and he in 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 the [trial] court err and abuse its discretion by finding that [Mother] was in contempt as a result of her enrolling the parties' son ... in preschool, allegedly without [Father's] knowledge, permission or consent, where none of the custody orders which were then in place contained "legal custody" provisions, and [the child] was attending preschool only during the time when it was [Mother's] custodial period?

IV. Did the [trial] court err and abuse its discretion by specifically finding that "an appropriate sanction (for contempt) is to award shared custody until the parties undergo trial[,"] and did the [trial] court err and abuse its discretion by imposing as a sanction for contempt a significant modification of the existing custody order, from a primary physical custody order to a shared custody order?

Mother's brief, at 4–5.

At the outset, we must determine whether the appeal is properly before us. We observe that the trial court's modification of physical custody "until such time as the [matter proceeds to a] pending custody trial" is temporary with respect to the custody determination. Trial Court Order, 12/24/15, at unnumbered 8. It is well-ensconced in Pennsylvania that an interim custody order is not appealable. G.B. v. M.M.B., 448 Pa.Super. 133, 670 A.2d 714, 720 (1996). The rationale behind this precept is that, until the trial court has rendered its best-interest determination on the merits, an interim custody order is ephemeral and subject to further modification upon petition. Thus, at first blush, it appears that this portion of the appeal is interlocutory.

However, upon closer examination of the pertinent issue, it is obvious that the instant order is not an interim determination of the children's best interest, and Mother does not challenge the trial court's determination of custody per se. In reality, the order in the case at bar is a finding of contempt and a concomitant sanction, which as we discuss infra , was entered in contravention of our jurisprudence regarding the modification of custody as a consequence of contempt. While an order granting temporary or interim custody is interlocutory, it is beyond cavil that a finding of contempt is final and appealable when a sanction is imposed. Stahl v. Redcay, 897 A.2d 478 (Pa.Super. 2006). Thus, the order is appealable.

We first review the propriety of the contempt order, and since we sustain the trial court's finding that Mother was in contempt for relocating with the children without permission and/or enrolling their son in preschool without consulting Father, we will then determine whether the trial court imposed an appropriate sanction.

Preliminarily, we review the merits of the substantive challenges that Mother raises in issues two and three. In issue two, Mother asserts that the trial court erred in finding her in contempt for relocating the children from Schuylkill County to Lancaster County. The crux of Mother's argument is that the custody order that was in effect did not preclude her from relocation. She continues that, although the relevant language was included in at least one of the trial court's scheduling orders, Father failed to attach that order to his contempt petition or demonstrate that she was aware that the order existed. These arguments fail.

It is established: "To be in contempt, a party must have violated a court [o]rder, and the complaining party must satisfy that burden by a preponderance of the evidence." Hopkins v. Byes, 954 A.2d 654, 655 (Pa. Super. 2008) (citation omitted). Specifically, "the complainant must prove certain distinct elements[:] (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor's violation was volitional; and (3) that the contemnor acted with wrongful intent." P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa.Super. 2012).

Instantly, as Mother acknowledges, the trial court's March 25, 2014 scheduling order expressly highlighted in bold type, "No party may make a change in the residence of any child which significantly impairs the ability of the other party to exercise custodial rights without first complying with all of the applicable provisions of 23 Pa.C.S. § 5337 and Pa.R.C.P. No. 1915.17 regarding relocation." Trial Court Order, 3/25/14. Section 5337 of the Child Custody Law instructs that a party wishing to relocate must provide notice of such intent prior to moving, to which any party entitled to receive notice may file objections. The statute continues, "No relocation shall occur unless: (1) [the parties consent]; or (2) the court approves the proposed relocation." 23 Pa.C.S. § 5337(b). However, before a court may approve a proposed relocation several things must occur. First, "[t]he party proposing relocation shall notify every other individual who has custody of the child [,]" and inform them of the particulars of the proposed move. 23 Pa.C.S. § 5337(c) (1)-(4). Next, if a non-relocating party files an objection to the proposed relocation, the trial court is required to hold a hearing in which the party proposing relocation has the burden of proving that the move would serve the child's best interest in light of the factors set forth in § 5337(h) (1)-(10). 23 Pa.C.S. § 5337(d), (g), (h) and (i). Absent exigent circumstances that warrant relocation prior to the evidentiary hearing, the trial court will not approve the move until a full consideration of all the relevant statutory factors addressed during the hearing. 23 Pa.C.S. § 5337(g).

All of the required steps did not occur herein. One month after the entry of the March 25, 2014 order, Mother issued notice to Father of her intention to relocate to Lancaster County with the children. However, after Father filed notice of his objection, Mother relocated without permission in...