February 4, 2014
Appeal from the Order Entered May 7, 2013 In the Court of Common Pleas of York County Family Court at No(s): 2010-FC-002027-03
BEFORE: DONOHUE, J., OTT, J., and PLATT, J. [*]
L.M. ("Mother") appeals the orders entered on April 25, 2013, and May 1, 2013, in the York County Court of Common Pleas. The order entered April 25, 2013, directed that a March 28, 2011, custody order be reinstated immediately after Mother served a previously issued prison term for contempt. The order entered on May 3, 2013, clarified the April 25, 2013, order to specify that C.J.R. ("Father") would have temporary custody of the parties' children while Mother served her contempt sentence. These orders were entered upon remand after a panel of this Court vacated a June 13, 2012, contempt order which transferred custody of the children to Father. L.A.M. v. C.J.R., 75 A.3d 559 (Pa.Super. 2013) (unpublished memorandum). Mother raises eight issues for our review challenging, inter alia, the trial court's jurisdiction, as well as alleging a violation of her due process rights. For the reasons that follow, we affirm in part, and vacate in part.
The facts and procedural history of this case are complex in nature. Mother and Father were never married, but lived together from 2002 until 2010. During that time, they raised two children: L.R. (born in 2003) is their biological child and C.M. (born in 1997) is Mother's child from a previous relationship. All parties agree that Father stood in loco parentis to C.M.
On November 3, 2010, Mother filed a complaint for primary physical custody, and sought to relocate with the children to Boston, Massachusetts. Father opposed Mother's relocation. Following a custody trial, the trial court entered an order on March 28, 2011, permitting Mother to relocate with the children after the current school year ended, and outlining a partial custody arrangement for Father. The custody order was affirmed by this Court on February 27, 2012. See L.A.M. v. C.R., 46 A.3d 827 (Pa.Super. 2012) (unpublished memorandum), 42 A.3d 1063 (Pa.Super. 2012) (Dissenting Opinion, Donohue, J.).
After Mother's relocation with the children, Father filed a series of contempt petitions averring that Mother was noncompliant with the terms of the March 28, 2011, custody order. The trial court considered only the first two petitions during a February 28, 2012, hearing, and found Mother in contempt with regard to one petition. The court directed her to serve 48 hours in jail unless she remained compliant. Thereafter, Father filed a petition for modification of custody. On June 11, 2012, the trial court held a second contempt hearing, during which time Father reiterated his request for modification of custody. On June 13, 2012, the trial court entered an order granting Father's petitions for contempt, issuing a bench warrant for Mother's arrest, and directing Mother to serve an aggregate term of 42 days' imprisonment. In that same order, the trial court also granted Father sole legal and physical custody "until further order of [that] court." Order, 6/13/2012, at 6. Mother filed an appeal to this Court challenging only the modification of custody. Mother did not contest the contempt finding.
While that appeal was pending, Father and the children moved to Maryland. Meanwhile, Mother, on September 28, 2012, petitioned the trial court to dismiss the custody case for lack of jurisdiction since none of the parties lived in Pennsylvania.
On April 19, 2013, a panel of this Court vacated the June 13, 2012, contempt order, and remanded the case for additional proceedings. L.A.M. v. C.J.R., 75 A.3d 559 (Pa.Super. 2013) (unpublished memorandum). The panel concluded the trial court had violated Mother's due process rights when it modified custody during the contempt proceeding without providing proper notice to Mother. However, the panel recognized that a trial court may temporarily modify custody to facilitate the best interests of the children under Pa.R.C.P. 1915.13 ("Special Relief"). Before doing so, the panel stated that the trial court must consider the 16 "best interest" factors listed in 23 Pa.C.S. § 5328 ("Factors to Consider When Awarding Custody"). Therefore, the panel vacated the contempt order and remanded the case "so that the trial court can specify whether it intended to enter a temporary order for special relief" and, if so, consider the "best interest" factors before modifying the prior order. Id. (unpublished memorandum at 21).
Upon remand, Father filed a petition for special relief seeking (1) transfer of the case to Maryland, and (2) temporary majority physical custody of the children. On April 25, 2013, the trial court entered the following order:
AND NOW, TO WIT, this 25th day of April, 2013, upon consideration of the Superior Court's Opinion filed on April 19, 2013, it is ORDERED and DIRECTED that the Order of March 28, 2011, shall be reinstated immediately upon [Mother's] having served the sentence of forty-two (42) days in York County Prison imposed by the undersigned after we found her in contempt of Court on June 11, 2012 (Order filed on June 13, 2012).
[Mother] shall report to York County Prison to serve the sentence at 8:00 a.m. on Friday, May 24, 2013.
[Mother] is advised that her failure to appear on the above date and time shall result in this court issuing a bench warrant for her arrest.
Order, 4/25/2103. Four days later, on April 29, 2013, the trial court held a hearing on Father's petition for special relief. That same day, the court entered an order transferring the matter to Montgomery County, Maryland. Thereafter, on May 1, 2013, Father filed a petition for clarification of the April 25th order, requesting that the trial court "specifically provide that Father is awarded temporary physical custody of the children until the completion of Mother's term of incarceration[.]" Petition for Clarification of Orders, 5/2/2013, at 4. On May 3, 2013, the trial court entered the following order:
AND NOW, to wit, this 3rd day of May, 2013, it is hereby Ordered and directed that this Court's prior Orders of April 25, 2013 and April 30, 2013 are clarified to specifically indicate that Father  shall have custody of the children … until such time as Mother has completed her sentence of incarceration pursuant to this Court's Order of April 25, 2013.
Order, May 3, 2013. This timely appeal followed.
Mother raises eight issues on appeal which we consolidate and summarize as follows: the trial court did not have subject matter jurisdiction to enter either the April 25 or May 3, 2013, orders; the trial court violated Mother's due process rights when it entered both the April 25 and May 3, 2013, orders; the April 25, 2013, order violates this Court's April 19, 2013, memorandum decision; the trial court erred when it entered the April 25, 2013, order without first ruling on Mother's motion to dismiss for lack of jurisdiction.
Mother's primary argument appears to be that the York County Court of Common Pleas had no subject matter jurisdiction to enter either order. She contends that neither Father nor Mother has lived in Pennsylvania since July of 2012, and the trial court officially transferred jurisdiction of the matter to Maryland on April 30, 2013, prior to the entry of its May 3, 2013, clarification order. Therefore, she seeks to invalidate the custody terms of the contempt order.
We note that, at the time the trial court entered the April 25, 2013, order, which was in response to this Court's remand, it still retained jurisdiction of the custody proceeding. Further, the order clarified that the modification of custody was only temporary to provide for the children's wellbeing during the time Mother served her 42-day contempt sentence. While it appears the trial court did not fully comply with this Court's directive on remand, since it entered the order without first giving notice to Mother, and without considering the "best interest" factors under Section 5328, those considerations are now moot. As set forth in the April 30, 2013, order, the custody proceedings were transferred to Maryland, and, based upon the parties' representations at oral argument before this Court, jurisdiction was then subsequently transferred to Massachusetts. Therefore, the York County Court of Common Pleas no longer has jurisdiction to modify custody in this case, even temporarily.
Accordingly, because Mother never appealed the contempt determination, that portion of the April 25, 2013, order is affirmed.However, the portion of the April 25, 2013, order that temporarily modified custody, and the subsequent May 3, 2013, clarification order, are now vacated. Should Mother serve the contempt sentence at some time in the future, Father may petition the court with proper jurisdiction of the custody matter for a temporary modification of custody.
Order of April 25, 2013 is affirmed in part and vacated in part. Order of May 3, 2013, vacated. Jurisdiction relinquished.