from the Order Entered December 24, 2015 In the Court of
Common Pleas of Schuylkill County Civil Division at No(s):
BEFORE: BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS,
OLSON, DUBOW, MOULTON AND SOLANO, JJ.
("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
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.
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
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.
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?
brief, at 4-5.
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., 670 A.2d 714, 720 (Pa.Super. 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.
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.
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.
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, ...