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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 ...

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