Recently, the case of P.H.D. v. R.R.D., __ A.3d __, 2012 PA Super 246 (Nov. 13, 2012), was decided by the Pennsylvania Superior Court. The P.H.D. case raises an issue that is discussed often among family law practitioners and has been reported in a number of appellate cases since the 1990s. The issue is whether a custody order may be modified at a contempt proceeding if a petition to modify is not pending before the court. A number of cases have been decided by the Superior Court that indicate a custody order may not be modified by a trial court at a contempt proceeding if a petition to modify has not been filed and served and properly before the court at the time of the contempt hearing. The reason for the prohibition of such action is that it would deprive the parties of their due process rights.

Interestingly, in P.H.D., a question arose as to whether a "clarification" entered by the trial court after a contempt proceeding amounted to a modification. The Superior Court found that the clarification amounted to a modification and, therefore, was an abuse of discretion and error of law because a petition to modify was not before the court at the time of the contempt proceeding.

The facts of the P.H.D. case are as follows: R.R.D. (the father) and P.H.D. (the mother) are the parents of two children. Pursuant to the trial court's June 28, 2011, and September 20, 2011, orders, R.R.D. had very limited custody of his children. Specifically, R.R.D.'s custody was contingent upon his first completing therapy and then limited to weekly supervised visits. The order further directed that R.R.D. "have no contact with the children other than supervised visits."

On January 19, P.H.D. filed a contempt petition against R.R.D. In her contempt filing, she claimed that R.R.D. violated the court's order "by initiating unsupervised contact with the children." At the contempt hearing, which was held March 1, P.H.D. testified that the father went to a band concert of one of the children at the child's school auditorium, sat in the front row, waved at the child during the concert while the child was performing and videotaped the mother and the child in the school's hallway after the performance. According to the opinion, P.H.D. also testified that R.R.D. frequently drove past her residence.

At the hearing, R.R.D. indicated that "he had no expectation of seeing the mother or the children at the band concert ... [and] that he attended the concerts to network for his business, and that he enjoyed the music." He also denied that he attempted to speak with P.H.D. and the children at the concert and indicated that P.H.D. was mistaken in believing he videotaped her. He further stated that his landscaping business has numerous customers in the mother's neighborhood and that he uses the cul-de-sac where her house is situated to turn around when he is working and he did not purposefully drive by her house. According to the opinion, "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.'"

Because P.H.D. did not file a petition to modify, only P.H.D.'s petition for contempt was before the court at the March 1 hearing. At the conclusion of the 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 am saying in the order from now on is that the [father] is ... not to appear at places where the children would be reasonably expected to be." On March 5, the trial court issued its order, which was consistent with the ruling it made on the record March 1. Specifically, after denying P.H.D.'s contempt petition, the order clarifies the prior order by limiting the father's contact with the children and also states: "The father is on notice that his failure to comply with the provisions of this order will result in a contempt finding in the future."

Though the contempt petition was denied, the father filed a timely appeal regarding the trial court's clarification. R.R.D. raised numerous issues on appeal, but the Superior Court only addressed his claim that he was denied due process as it was dispositive of the appeal. According to the opinion, "The 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."

The Superior Court's opinion provides a reminder regarding the appeal process in a family fast track appeal. The guardian ad litem in P.H.D. asserted that R.R.D.'s appeal should be quashed because he failed to file a statement of errors complained of on appeal with the trial court pursuant to Pa.R.A.P. 1925(a)(2)(i). In the opinion, the Superior Court states: "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."

The Superior Court further indicated that the court dismisses appeals for procedural defects sparingly. The Superior Court found that P.H.D. was not prejudiced by R.R.D.'s procedural defect because R.R.D. "substantially complied with the procedural rule" by serving and filing his statement of errors with the trial court at a later date.

In the opinion, the Superior Court analyzed the trial court's order that clarified the prior custody order to decide whether a modification of the prior custody order occurred by the trial court without a petition to modify being filed, thus violating the father's due process rights. The Superior Court indicated that "there is a dearth of authority specifying what constitutes a modification." Therefore, the Superior Court looked to the Uniform Child Custody Jurisdiction and Enforcement Act that 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." The Superior Court found that the trial court's March 5 order "unquestionably imposed new and severe restrictions on the father, and therefore modified the earlier custody orders." The Superior Court highlighted that R.R.D. "is now required proactively to alter his daily life 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." According to the opinion, the Superior Court stated: "This is a significant departure from the previous order that limited the father's time spent with children to supervised visits." The Superior Court reiterated that 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."

After extensively quoting its prior decision in the case of Langendorfer v. Spearman, 797 A.2d 303 (Pa. Super. 2002), which reiterates that a trial court may not modify a custody order at a contempt proceeding where a petition to modify has not been filed and served, the Superior Court vacated the portion of the trial court's order providing the clarification and language that R.R.D. is on notice that his failure to comply with the order would result in a contempt finding in the future.

The P.H.D. case is an interesting case for a number of reasons. This case serves as a reminder that a litigant may appeal an order that he or she is successful in achieving if other portions of the order are not acceptable to the litigant. Further, it is understandable why the trial court entered the order of March 5. It appears as though, according to the opinion, there was an ambiguity contained in the order. There is clearly a viable argument that the father violated the order. However, in order for him to be found in contempt, he had to have acted with wrongful intent. Because of the ambiguity of the order, that appeared to be the hurdle to a finding of contempt. The trial court merely attempted to remedy the ambiguity for the future when it entered its order. However, the Superior Court reiterated the importance of due process, which resulted in the trial court's clarification being an error. The Superior Court, in its detailed and well-written opinion, further addressed the issue that if the father had been found in contempt, the trial court could have ordered ancillary relief in the form of sanctions. However, the Superior Court provided a reminder that a modification of custody as a form of sanctions was rejected by the Superior Court in the Langendorfer case. Importantly, practitioners should remember that when filing a petition for contempt, if their clients also would like the trial court to modify the order at the contempt proceeding, a petition for modification should also be filed and consolidated with the contempt petition. However, beware: If the petition to modify is filed, the trial court is free to modify the order in any way it deems necessary, as the parties will be on notice that a hearing specifically dealing with custody modification (in addition to the contempt) will be addressed.

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. He is co-author of the book Pennsylvania Child Custody Law, Practice and Procedure. He is chair-elect of the family law section of the Philadelphia Bar Association, co-chairman of its custody committee, and a past member of council and the executive committee of the family law section of the Pennsylvania Bar Association. This article is reprinted with permission from the December 11, 2012, issue of The Legal Intelligencer. © 2012 ALM Media LLC. Further duplication without permission is prohibited. All rights reserved.

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