J-S42009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.D.G.

v.

M.C.M. 

Appellant

 v.

P.R.G. & D.S.G.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 372 MDA 2017

Appeal from the Order Entered January 31, 2017

In the Court of Common Pleas of Franklin County 

Civil Division at No(s): 2014-1898

BEFORE: OLSON, MOULTON, JJ., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY OLSON, J.: FILED AUGUST 04, 2017

M.C.M. (“Mother”) appeals from the order entered on January 31, 

2017, that granted the petition filed by Appellee, M.D.G. (“Father”), and his 

parents, the Intervenor Appellees, in the custody case between him and 

Mother (“Intervenors”), to hold Mother in contempt of the trial court’s 

custody order that was entered on February 23, 2016. We vacate and 

remand.

In its opinion, the trial court set forth the factual background and 

procedural history of this appeal as follows: 

On June 1, 2016, [Father] and Intervenors filed a Praecipe to 

Discontinue the Above Captioned Matter at the Request of the 

Petitioner/Intervenors and the Plaintiff/Father, which was 

prepared by Attorney James M. Stein. On September 20, 2016, 

[Mother] filed a praecipe discharging her attorneys, Mid Penn 
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Legal Services. On December 29, 2016, Attorney Stein filed a 

Petition for Civil Contempt for Disobedience of Custody Order on 

behalf of [Father] and Intervenors. The court entered a notice 

and order to appear on January 4, 2017, which scheduled a 

hearing on the matter for January 31, 2017. The hearing was 

convened on January 31, 2017, and [Father] and Intervenors 

appeared in person, and were represented by Attorney Stein. 

[Mother] did not appear. The court heard testimony and entered 

an order [] that same day, finding [Mother] in contempt.

On February 13, 2017, Intervenors filed an Entry of Appearance 

of Self-Represented Party, as well as a Petition for Civil 

Contempt for Disobedience of a Custody Order. The next day, 

the court entered [an] order to appear[,] setting a hearing for 

March 1, 2017, at 2:30 p.m. On February 28, 2017, [Mother], 

through her attorney, Nicole M. Sipe,, Esq., of Mid Penn Legal 

Services, filed a Praecipe to Allow [Mother] to Proceed In Forma 

Pauperis. Also that day, [Mother] filed a notice of appeal [from 

the January 31, 2017 order]. Due to the pending appeal, the 

hearing on the second Petition for Civil Contempt for 

Disobedience of a Custody Order was not held as scheduled. 

Trial Court Opinion, 3/31/17, at 1-2 (some internal italicization and 

capitalization omitted).

In her brief on appeal, Mother raises five issues, as follows: 

I. Whether the trial court committed an error of law when it 

found it had jurisdiction to hold Mother in contempt of a custody 

order despite Father and [Intervenors] having discontinued the 

underlying custody action[?]

II. Whether the trial court committed an error of law and 

deprived Mother of due process when it held a hearing on a 

Petition for Contempt for which Mother was not properly served 

pursuant to Pa.R.C.P. No. 1915.12(d)[?]

III. Whether the trial court committed an error of law by holding 

a hearing on the Petition for Contempt in the absence of Mother 

in violation of Pa.R.C.P. No. 1915.12(d)[?]

IV. Whether the trial court erred or abused its discretion when it 

found, without proper support in the record, that Mother was in 
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contempt of an order that had been discontinued and docketed 

as such by the Franklin County Prothonotary[?]

V. Whether the trial court committed an error of law by ordering 

punishments for contempt that are not authorized under the 

exhaustive list of 23 Pa.C.S. § 5323(g)[?]

Mother’s Brief at 2.1

Concerning Mother’s third issue, the trial court stated the following:

[Mother] asserts that this court committed an error of law by 

holding a hearing on the Petition for Contempt in which [Mother] 

was not present. Based on Pa.R.C.P. 1915.12(d), the court is 

constrained to agree. The court is constrained to find that a 

remand is necessary to hold a hearing on the petition in which 

[Mother] is present. The court had serious concerns regarding 

[Mother’s] constant changes of residence and her inability, or 

outright refusal, to provide the opposing parties or the court with 

an address at which she could be reached. It is that conduct 

that caused the hearing to be conducted in her absence. Those 

concerns are lessened with her now being represented by Nicole 

M. Sipe, Esq., of Mid Penn Legal Services. Therefore, the court 

believes [Mother’s] claim is valid on this specific issue.

Trial Court Opinion, 3/31/17, at 4.

As the trial court admittedly erred in holding a hearing on the 

contempt petition in the absence of Mother and it requests a remand of the 

matter, we will remand the matter to the trial court for further proceedings. 

In so doing, we do not reach Mother’s second issue, concerning improper 

notice of the hearing to Mother; her fourth issue, whether the record 

supports a finding of contempt against Mother; and her fifth issue, whether 

the trial court imposed improper punishments for the contempt holding. We 

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1 Mother stated her issues somewhat differently in her concise statement.
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find, however, that the trial court continued to have jurisdiction over the 

underlying custody action and could rule on the contempt petition, as the 

court had not granted leave to either party to discontinue the action after 

notice to Mother (Pa.R.C.P. 1915.3-1(b)(2)(A)), and there was no written 

agreement of the parties to discontinue the custody action in the record 

(Pa.R.C.P. 1915.3-1(b)(2)(B)). See Trial Court Opinion, 3/31/17, at 3. 

Thus, we reject Mother’s first issue, and find the trial court’s exercise of 

jurisdiction over the contempt petition proper. 

 Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/4/2017