J-S13045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.T.W., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

M.J.T.,

Appellant No. 1809 WDA 2014

Appeal from the Order entered October 2, 2014, 

in the Court of Common Pleas of Mercer County, 

Civil Division, at No: 2007-3764

BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 12, 2015

M.J.T. (Father) appeals from the order entered October 2, 2014, in the 

Court of Common Pleas of Mercer County, which found him in contempt of a 

January 31, 2012 custody order, and which temporarily awarded additional 

custodial time of his minor daughter, A.A.J.T. (Child), to Child’s mother, 

S.T.W. (Mother). We affirm in part and vacate in part.

On December 26, 2007, the trial court entered an order awarding 

Mother and Father shared legal and physical custody of Child. The order 

specified that the parents would continue to share physical custody “as per 

their current practice.” Order, 12/26/07, at 1. On June 24, 2008, an order 

was entered modifying the prior custody order by providing that the parents 

“shall share custody on an alternating weekly basis with the exchange time 

being 7:00 p.m. each Sunday.” Order, 6/24/08, at 1. On January 31, 2012, 
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an order was entered amending the June 24, 2008 order by providing that 

“the parties’ shared physical custody shall run from 8:00 a.m. on Tuesday 

through 8:00 a.m. on Tuesday . . . .” Order, 1/31/12, at 1. The order 

further provided, in relevant part, as follows.

2. The natural father shall not pick the child up from school 

unless the school calls indicating there is no one there to pick 

the child up. The prohibition only applies to those periods of 

time when the natural mother is exercising physical custody. If 

the natural father is required to pick up the child during the 

mother’s period of custody, he shall return the child to the 

natural mother at the conclusion of her work, which is typically 

6:30 p.m.

Id. at 1-2.

On August 21, 2014, Mother filed a pro se petition for civil contempt 

against Father, in which she alleged that Father “[n]ever [b]rings [C]hild 

back on time,” that Father does not answer his phone, and that she was 

having difficulty locating Child. Petition for Civil Contempt for Disobedience 

of Custody Order, 8/21/14, at 1-2. A hearing was held on October 1, 2014, 

during which the court heard the testimony of Mother and Father. Following 

the hearing, on October 2, 2014, the court entered its order finding Father in 

contempt and awarding Mother periods of make-up time with Child. 

Specifically, the order provided that Mother’s next four periods of custody 

would be for two weeks, rather than the normal one week. The court 

clarified its order by noting that, after Mother’s make-up time, “the regular 

custody schedule shall remain in full force and effect.” Order, 10/2/14, at 1. 
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On October 31, 2014, Father timely filed a notice of appeal, along with a 

concise statement of errors complained of on appeal.

Father now raises the following issue on appeal. “Did the trial court 

err in finding [Father] in contempt of court and in modifying the custody 

order?” Father’s brief at 4. 

We consider Father’s claim mindful of our well-settled standard of 

review.

When we review a trial court’s finding of contempt, we are 

limited to determining whether the trial court committed a clear 

abuse of discretion. This Court must place great reliance on the 

sound discretion of the trial judge when reviewing an order of 

contempt. This [C]ourt also has stated that each court is the 

exclusive judge of contempts against its process.

G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (citations and quotation 

marks omitted).

To sustain a finding of civil contempt, the complainant must 

prove certain distinct elements by a preponderance of the 

evidence: (1) that the contemnor had notice of the specific order 

or decree which he is alleged to have disobeyed; (2) that the act 

constituting the contemnor’s violation was volitional; and (3) 

that the contemnor acted with wrongful intent.

P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation 

omitted).

Instantly, Father concedes that he is obligated under the January 31, 

2012 custody order to return Child to Mother’s care after she returns from 

work during her custodial periods. Father’s Brief at 11-12. However, Father 

contends that he should not be held in contempt because the subject order 

did not obligate him to ensure that a custody transfer actually takes place. 
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Id. Father also asserts that it was impossible for him to comply with the 

order because Mother refused to communicate with him over the phone. Id.

at 12-13. Further, Father argues that the trial court erred by modifying the 

January 31, 2012 custody order without considering the best interest of 

Child. Id. at 13-14. Father requests that this Court award him with the 

custody time that he missed as a result of the trial court’s contempt order. 

Id. at 14.1

In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court explained 

that it found Father in contempt because he kept Child from Mother for two 

months, and that “[b]y definition, that is willful contempt.” Trial Court 

Opinion, 11/3/14, at 2. The court also explained that it did not modify the 

subject custody order, but merely provided Mother with “make-up time 

equal to the time [Mother] lost as a result of [Father’s] contempt.” Id. 

 

1 We note that the trial court’s modified custody schedule lasted only until 

December of 2014, and that the parties are, presumably, once again 

adhering to the custody schedule outlined in the January 31, 2012 order. 

However, this does not require that we dismiss Father’s appeal as moot. 

See Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa. Super. 2011), appeal 

denied, 34 A.3d 833 (Pa. 2011). In Warmkessel, the appellant was held in 

contempt and incarcerated as a result of his failure to pay child support. Id.

at 411. By the time this Court reviewed his appeal, the appellant had been 

released from incarceration. Id. at 413. Nonetheless, the Court addressed 

the merits of the appellant’s claims. We reasoned that, “Appellant is subject 

to a continuing support order where Appellant might once again face civil 

contempt proceedings raising the issue of credit for time served, and other 

similarly situated defendants might raise the same claim. Therefore, this 

matter qualifies as an exception to the mootness doctrine.” Id. (citations 

omitted). This rationale also applies to the instant matter, as Father 

remains subject to the January 31, 2012 custody order. 
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After a thorough review of the record in this matter, we conclude that 

the trial court did not abuse its discretion by finding Father in contempt. 

During the October 1, 2014 contempt hearing, Mother testified that Father 

picks up Child from school on Tuesdays and Fridays during Mother’s 

custodial periods. N.T., 10/1/14, at 5. Mother then picks up Child at 

Father’s house at about 6:30 p.m. Id. at 3.2 However, Mother explained 

that she has had difficulty picking up Child on time and that, “every so 

often,” she is unable to retrieve Child until “maybe 8:00 or 9:00 at night,” 

because Child is not at Father’s home, and Child will not answer her phone. 

Id. Mother stated that this has happened “maybe 20” times. Id.

Mother further testified that she “practically didn’t see” Child during 

August and September of 2014. Id. at 4. Specifically, Mother stated that 

she saw Child on July 29, 2014, and that she did not see Child again until 

“the first week of school.” Id. at 3. Mother further stated that Father did 

not answer his phone when she attempted to call him, and that she tried 

calling from different numbers and having her mother try to contact Father 

as well. Id. at 4. Mother explained that she has even called 911 in an effort 

to get Child back. Id. 

On cross-examination, Mother admitted that she changed her phone 

number in “the last several months,” but she denied that Father has been 

unable to contact her due to her different number. Id. Mother also noted 

 

2 Mother noted that Child walks to her paternal grandmother’s house on 

Wednesdays and Thursdays, and that Mother picks Child up there. N.T., 

10/1/14, at 5.
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that she and Father are not on speaking terms, and that all custody 

exchanges are coordinated through Child, who has a cell phone. Id. at 6. 

Father testified that he has been unable to contact Mother because she 

changed her phone number, and did not provide him with her new number. 

Id. at 7. Father stated that he has had the same phone number since Child 

was born, but that Mother has not sent him a text message or left him a 

voicemail since “Junish.” Id. at 8. Father further explained that Child has a 

difficult time getting a response from Mother when she tries to contact her. 

Id. at 9. Father contended that Mother had regular custody of Child in July 

of 2014, but that, after July, Mother did not attempt to pick up Child. Id. at 

9-10. Father stated that normally, Mother would “pull up to the house after 

work, blow the horn, call the phone and get [Child]. That did not take 

place.” Id. at 10-11. Father stated that, if Mother did attempt to retrieve 

Child, she “made no attempt to contact me.” Id. at 11. 

Father further testified that Mother saw Child in August of 2014 “down 

at my niece’s and nephew’s house,” but that Mother did not have custody of 

Child during that month. Id. at 12. Father also explained that Mother had 

custody of Child for a few days during September, about a week before the 

contempt hearing. Id. at 12-13. Father stated that Mother did not pick up 

Child the week of the contempt hearing. Id. at 13. According to Father, 

Mother did not call him, and did not come to his house. Id.

Thus, the record confirms that Mother did not have custody of Child for 

approximately two months. While we agree with Father that the January 31, 
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2012 custody order does not obligate him to ensure that custody exchanges 

actually take place, it is undisputed that Father had a duty to return Child to 

Mother during her periods of custody. Mother testified that Father ignored 

her attempts at communication during these times, and thereby violated the 

order by preventing her from exercising her custodial rights. In addition, 

while Father testified that Mother did not attempt to exercise her periods of 

physical custody, and that he was unable to contact Mother due to her 

changed phone number, the trial court was free to reject Father’s testimony 

as incredible. Accordingly, we affirm the portion of the trial court’s October 

2, 2014 order finding Father in contempt.

However, we reach a different result with respect to the portion of the 

court’s order awarding Mother make-up time with Child. We agree with 

Father that, to the extent the trial court “modified” the custody order by 

temporarily awarding Mother additional custodial time, it erred by failing to

consider the best interest of Child. See S.W.D. v. S.A.R., 96 A.3d 396, 403 

(Pa. Super. 2014) (observing that courts must always consider the best 

interest of the child when considering an award or modification of custody). 

Moreover, even if the trial court is correct that it did not “modify” the 

custody order, but merely sanctioned Father for his contempt, the court still 

erred by imposing an impermissible sanction under the Child Custody Act. 

The Act provides, in relevant part, as follows.
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(g) Contempt for noncompliance with any custody order.--

(1) A party who willfully fails to comply with any 

custody order may, as prescribed by general rule, be 

adjudged in contempt. Contempt shall be punishable 

by any one or more of the following: 

(i) Imprisonment for a period of not 

more than six months. 

(ii) A fine of not more than $500. 

(iii) Probation for a period of not more 

than six months. 

(iv) An order for nonrenewal, suspension 

or denial of operating privilege under 

section 4355 (relating to denial or 

suspension of licenses). 

(v) Counsel fees and costs. 

(2) An order committing an individual to jail under 

this section shall specify the condition which, when 

fulfilled, will result in the release of that individual. 

23 Pa.C.S.A. § 5323(g).

When interpreting a statute,

we are constrained by the rules of statutory interpretation, 

particularly as found in the Statutory Construction Act. The goal 

in interpreting any statute is to ascertain and effectuate the 

intention of the General Assembly. Our Supreme Court has 

stated that the plain language of a statute is in general the best 

indication of the legislative intent that gave rise to the statute. 

When the language is clear, explicit, and free from any 

ambiguity, we discern intent from the language alone, and not 

from arguments based on legislative history or “spirit” of the 

statute. We must construe words and phrases in the statute 

according to rules of grammar and according to their common 

and approved usage . . . .
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Weiner v. Fisher, 871 A.2d 1283, 1285-86 (Pa. Super. 2005), appeal 

denied, 936 A.2d 41 (Pa. 2007) (citations and quotation marks omitted).

Here, Section 5323(g)(1) indicates that “[c]ontempt shall be 

punishable by any one or more” of the sanctions listed at Sections 

5323(g)(1)(i)-(v). 23 Pa.C.S.A. § 5323(g)(1). Critically, a temporary 

modification of custody is not listed as one of the permissible sanctions 

under Section 5323(g)(1). Further, nothing in the language of Section 

5323(g)(1) suggests that a court is permitted to employ sanctions outside of 

those enumerated above. Thus, based on the plain and unambiguous 

language of the Act, we conclude that the trial court erred by awarding 

Mother with additional custodial time as a sanction for Father’s contempt.3

 

3 We note that this Court has held that “a lower court may not modify a 

custody order as a sanction for contempt of such an order, unless a petition 

to modify custody has been filed and all parties have been provided with 

notice and opportunity to prepare and advocate their respective positions.” 

G.A., 72 A.3d at 269-70 (citing Langendorfer v. Spearman, 797 A.2d 303 

(Pa. Super. 2002); see also P.H.D., 56 A.3d at 706; Choplosky v. 

Choplosky, 584 A.2d 340 (Pa. Super. 1990). However, G.A., 

Langendorfer, P.H.D., and Choplosky all involved situations where a trial 

court modified a custody order permanently. In addition, this Court’s 

holding in Choplosky, from which its later holdings in Langendorfer,

P.H.D., and G.A. were derived, was specifically limited to permanent 

modifications of custody. See Choplosky, 584 A.2d at 342-43 (explaining 

that the trial court erred by permanently modifying custody following a 

contempt hearing, but suggesting that a temporary modification may be 

permissible); see also Langendorfer, 797 A.2d at 308 (“Father contends 

that the court may not permanently modify a custody order without having 

a petition for modification before it. We agree.”) (citation omitted, emphasis 

added); P.H.D., 56 A.3d at 706 (“We have expressly held that a trial court 

‘may not permanently modify a custody order without having a petition for 

modification before it.’”) (quoting Langendorfer, 797 A.2d at 308) 

(emphasis added). Thus, these cases are distinguishable from the instant 
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Accordingly, we vacate the portion of the trial court’s order temporarily 

adjusting the parties’ custody schedule. The court’s order is affirmed in all 

other respects. 

Order affirmed in part and vacated in part. Case remanded for further 

proceedings consistent with this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2015

 

matter, where the trial court only modified the parents’ custody schedule 

temporarily.