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[U] L.M v. C.J.R.

Superior Court of Pennsylvania

February 4, 2014

L.M. Appellant
v.
C.J.R. Appellee

NON-PRECEDENTIAL DECISION

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. [*]

MEMORANDUM

OTT, J.

L.M. ("Mother") appeals the orders entered on April 25, 2013, and May 1, 2013, in the York County Court of Common Pleas.[1] 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 L.A.M. v. C.J.R., 75 A.3d 559 (Pa.Super. 2013) (unpublished memorandum).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 See L.A.M. v. C.R., 46 A.3d 827 (Pa.Super. 2012) (unpublished memorandum), 42 A.3d 1063 (Pa.Super. 2012) (Dissenting Opinion, Donohue, J.).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.[2] 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 ...

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