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P.H.D v. R.R.D


November 13, 2012


Appeal from the Order entered March 5, 2012 In the Court of Common Pleas of Allegheny County Civil Division at No.FD-99-02811-005



In this case, we are called upon to decide whether, after hearing and denying a contempt petition, a trial court nevertheless retains authority in the same proceeding to grant relief ancillary to that contempt petition. We conclude that it does not. R.R.D. ["Father"] appeals pro se from a March 5, 2012 order dismissing P.H.D. ["Mother"]'s contempt petition. Notwithstanding its decision to deny Mother's contempt petition, the trial court proceeded sua sponte to "clarify" its previous child custody order entered on June 28, 2011.*fn1 No motion for clarification was pending. No motion for modification was pending. Indeed, as we discuss infra, in "clarifying" its custody order sua sponte, the trial court modified it. This violated Father's due process rights. Accordingly, we vacate the order as it pertains to custody modification.

Father and Mother are the divorced parents of two minor children: On January 19, 2012, Mother filed a contempt petition, in which she claimed that Father had violated the June 28, 2011 order by initiating unsupervised contact with the Children.*fn2 No petition for modification or J.D., born in March of 1999 and R.D., born in December of 2001 [collectively "Children"]. The parties' custody arrangement has changed several times since their divorce. At the time of the contempt hearing, custody was controlled by the June 28, 2011 and September 20, 2011 orders. In the June 28, 2011 order, the trial court made Father's custody contingent on his completion of therapy. Pending completion, Father was limited to weekly supervised visits. Order, 6/28/11, at 1-2.*fn3 The trial court's September 20, 2011 order directed Father "to have no contact with the children other than supervised visits." Order, 9/20/11, at 2.

clarification was filed or served. On March 1, 2012, the trial court held a hearing on Mother's contempt petition. Mother testified that Father went to J.D.'s band concert in a school auditorium, sat in the front row, and, during the concert, waved his arms at J.D. while J.D. was performing. Notes of Testimony ["N.T."], 3/1/12, at 18. Mother further testified that, after the performance, Father videotaped Mother and R.D. in the school's hallway. Id. at 19. Mother also testified that Father frequently drives past Mother's house. Id. at 46. Father insisted that he had no expectation of seeing Mother or Children at the band concert. Id. at 69. He stated that he attended the concerts to network for his business, and that he enjoyed the music. Id. at 59-60. Father testified that he did not attempt to speak to Mother or Children at the concert, and that Mother was mistaken in believing that he videotaped her. Id. at 28. Father, who owns a landscaping business, stated that he has several clients in Mother's neighborhood and that he uses Mother's street as a turnaround, because it is a cul-de-sac. Id. at 56-58. Father insisted that he was not attempting to violate the June 28, 2011 custody order. Id. at 63-65. He testified that he believed the court order directing him to have "no contact" with Children meant that he was to "not talk to the children. That's what I consider contact." Id. at 64. At the conclusion of the March 1 hearing, the trial court stated that it was "dismissing the contempt petition at this time but . . . modifying the [custody] order to clarify it. And what I'm saying in the order from now on is that [Father] is . . . not to appear at places where the children would be reasonably expected to be . . . ." Id. at 81. The trial court concluded by stating that it would "issue something in the mail." Id. at 84.

On March 5, 2012, the trial court issued its order, which was consistent with the rulings it made or forecast on March 1.*fn4 The March 5 order dismissed Mother's contempt petition. The order also "clarified" the court's previous custody orders so as to mandate that Father may "not appear at activities or places where the children would reasonably be expected to be at a particular time." Order, 3/5/12. The order further stated: "Father is on notice that his failure to comply with the provisions of this order will result in a contempt finding in the future." Id. Father timely appealed. Mother filed no appeal of the denial of her contempt petition.

The guardian ad litem*fn5 asserts that we should quash Father's appeal because Father failed to file a statement of errors complained of on appeal with the trial court pursuant to 1925(a)(2)(i) and failed to attach such a statement to his brief pursuant to Pa.R.A.P. 2111(a)(11). Guardian's Brief at 7. We decline to do so. While Pa.R.A.P. 1925(a)(2)(i) and 905(a)(2) require that a statement of errors be filed with the trial court contemporaneously with a notice of appeal in family fast track appeals, the rules do not prescribe a certain consequence in the event of a failure to comply. "[R]ule 905(a)(2) is procedural, not jurisdictional; therefore, we are not divested of our jurisdiction by non-compliance." In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009). We dismiss appeals for procedural defects sparingly, and will not do so when an appellant has substantially complied with the procedural rules and the opposing party has not been prejudiced. Id. (citing Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980)). Such is the case in this pro se appeal.

While the guardian ad litem alleges that Father did not file a statement of errors with the trial court, our docket contains Father's statement, filed on April 3, 2012, along with a certificate of service indicating that all of the appropriate individuals were served, including the guardian ad litem. See Statement of Matters Complained of Regarding Appeal of Order on Custody Contempt Dated March 5, 2012, 4/3/12. Father substantially complied with the procedural rules, and the opposing party has not alleged prejudice. Accordingly, we decline to quash or dismiss this pro se litigant's appeal.

While Father asserts several issues on this appeal, we need only review Father's claim that he was denied due process. Our resolution of that claim (raised within Father's first issue) is dispositive of this appeal.*fn6 Specifically, Father argues that the trial court committed an abuse of discretion and/or an error of law by, inter alia, modifying the custody order notwithstanding its failure to conduct a modification hearing. Father's Brief at 1. We are constrained to agree.

The trial court had before it Mother's contempt petition alone. The subject of this appeal is the order dismissing that petition. Our scope and standard of review are familiar: "In reviewing a trial court's finding on a contempt petition, we are limited to determining whether the trial court committed a clear abuse of discretion. This Court must place great reliance on the sound discretion of the trial judge when reviewing an order of contempt." Flannery v. Iberti, 763 A.2d 927, 929 (Pa. Super. 2000) (citations omitted).*fn7

In resolving Father's issue, we are required to determine whether the trial court's March 5, 2012 order modified the previous custody arrangement or merely "clarified" it. See T.C.O. at 2 ("I found that Father was not in contempt of that custody order, but I did clarify the order...."). We have expressly held that a trial court "may not permanently modify a custody order without having a petition for modification before it." Langendorfer v. Spearman, 797 A.2d 303, 308 (Pa. Super. 2002). Neither party filed a petition for modification. The trial court asserts that it "clarified," but did not modify, the custody order. We disagree.

While many of our cases have discussed instances in which a custody modification is necessary, there is a dearth of authority specifying what constitutes a modification. "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S.A. § 1921(a). Further, "when the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:... other statutes upon the same or similar subjects." 1 Pa.C.S.A. § 1921(c)(5). In the Uniform Child Custody Jurisdiction and Enforcement Act ["UCCJEA"], 23 Pa.C.S.A. §§ 5401-5482, our General Assembly has provided a definition of modification. Even though this is not a UCCJEA case, we may, in the absence of other governing authority, afford that definition persuasive value. See 23 Pa.C.S.A. § 1921(c)(5). The UCCJEA defines modification as "[a] child custody determination that changes, replaces, supersedes or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination." 23 Pa.C.S.A. § 5402.

The June 28, 2011 and September 20, 2011 custody orders collectively provided that Father was permitted supervised visits upon completion of therapy, but was to have no contact with Children outside of those visits. The March 5, 2012 order provided that, on explicit pain of pre- adjudicated contempt, Father "shall not appear at activities or places where the children would reasonably be expected to be at a particular time."

Order, 3/5/12 ("failure to comply will result in a contempt finding")

(emphasis added). This March 5, 2012 order unquestionably imposed new and severe restrictions on Father, and therefore modified the earlier custody orders. Father is now required proactively to alter his daily life and to constantly monitor his movements so as to avoid ever being wherever the children may happen to be at any and all times in the community at large. Would this include a Pittsburgh Steelers game? A popular shopping mall or store or restaurant? An amusement park?

It cannot be gainsaid that these purported no-go zones were not contained in the previous custody arrangement, which was already highly restrictive. Under the trial court's new "clarification," Father is no longer permitted to attend school activities, community activities that Children will likely attend, or even restaurants and stores that Children might visit. This is a significant departure from the previous order that limited Father's time spent with Children to supervised visits. Most important, the parties were not on notice that such a breathtaking set of restrictions was sought, nor that it could be ordered, particularly in a scenario where the contempt petition is itself denied.

The trial court not only modified the custody order. It did so without any modification petition. It did so without notice and a hearing tailored specifically to custody modification. It denied Father his due process rights. Our decision in Langendorfer is instructive. In that case, the mother filed a contempt petition alleging that the father willfully violated the custody order.

Langendorfer, 797 A.2d at 305-06. In a subsequent order, the trial court found the father in contempt, granted the mother sole legal and primary physical custody, and restricted the father's visitation with the children to supervised visits. Id. at 306-07. We found that the father's due process rights were violated because he had no notice that custody was at issue. Id. at 309.

Our words in Langendorfer bear reproducing at length here:

In the instant case, Mother's petition for contempt in no way implicates custody, i.e., she did not request any change in custody. Furthermore, the order to appear received by the parties from the court that scheduled the contempt hearing did not notify the parties that custody was at issue. Also the record and more particularly the docket do not indicate that Mother's contempt petition and Father's petition for temporary modification were consolidated for any purpose. Moreover, the transcript of the hearing reveals that only the contempt petition was before the court. Finally, the court's order, quoted above and delivered from the bench at the conclusion of the hearing, references only Mother's contempt petition and Father's response thereto. Accordingly, we conclude that only Mother's contempt petition was before the court on March 5, 2001.

In addition to the foregoing, we emphasize that Father's due process rights were violated by the actions taken by the court, because Father had no notice that custody would be at issue in the proceedings. "Notice, in our adversarial process, ensures that each party is provided adequate opportunity to prepare and thereafter properly advocate its position, ultimately exposing all relevant factors from which the finder of fact may make an informed judgment." [Choplosky v. Choplosky, 584 A.2d 340, 342 (Pa. Super. 1990).] Without notice to the parties that custody was at issue, the trial court could not "assume that the parties ha[d] either sufficiently exposed the relevant facts or properly argued their significance. Consequently neither we nor the trial court can make an informed, yet quintessentially crucial judgment as to whether it was in the best interests of the [child] involved to give sole legal [and physical] custody to the mother." Id. at 343.

Having concluded that a modification petition was not before the court at the time of the hearing on Mother's contempt petition and that Father did not have notice that custody would be an issue, we conclude that the court committed a clear abuse of discretion in ordering a change in custody.

Id. at 308-09 (footnotes omitted).

As in Langendorfer, Father here had no notice that custody was at issue. Neither the contempt petition nor the notice and order to appear held out the prospect of custody modification. See Petition for Contempt of Child Custody Order of Court and Request for Other Relief, 1/12/11; Contempt Hearing Notice, 1/19/12. Father was unaware that custody was at issue, and therefore had no opportunity to prepare for a modification hearing.

Indeed, the facts here are more egregious than in Langendorfer, where the trial court did find the father in contempt.*fn8 Here, by contrast, the trial court expressly dismissed the contempt petition. Under such circumstances, it is of course impossible even to advance the argument (rejected in any event by Langendorfer) that the modifications were ancillary to a contempt adjudication. Had the trial court found Father in contempt of its custody order, it would have had jurisdiction to enforce that order. Even then, it would have lacked authority to modify it. Once the contempt petition was dismissed, and inasmuch as no motion for modification was filed, the trial court had nothing else on its plate. No ancillary relief could be granted.

The trial court abused its discretion in altering the terms of custody when a petition requesting such relief was not before it. Once the trial court dismissed the contempt petition, it had no authority to rule on modification, which was not before it at the time. The custody court does not possess some ongoing, continuous supervisory role over the life of a family, however broken that family may be. Rather, the court's jurisdiction is triggered only when invoked, and then only upon proper petition and notice.

We vacate the trial court's March 5, 2012 order as it purports to relate to custody modification, albeit under the label of "clarification." Specifically, we vacate the second paragraph of the court's order. If one of the parties seeks to modify the custody arrangement, that party must petition the court accordingly. Thereafter, if the court schedules a hearing on the modification petition, the opposing party is on notice that custody modification will be at issue, in fact and in law.

Order vacated in part, as set forth hereinabove. Jurisdiction relinquished.

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