Contempt Petitions and Custody Modification

The Pennsylvania Superior Court, in the recent case of G.A. v. D.L., 2013 Pa. Super. 168, filed July 3, 2013, decided the question of whether or not service of a petition alleging contempt on the Respondent’s attorney of record in a custody order is proper service on the alleged party in contempt and reiterated that a contempt petition cannot be the basis for a modification of a custody order unless the relief requested is specifically plead.

Judge Wecht (joined by President Judge Ford Elliott and Judge Colville) writing for the Court reviewed a Schuylkill Common Pleas decision which focused on two divorced parents who had a prototypically fractious and dysfunctional relationship.  The opinion indicates that the mother, who was the primary custodian, filed for contempt at least three previous times and the contempt petition then before the Court was filed by the father.  The opinion also lists numerous missed appointments, visitations, continued hearings and evidences an ongoing inability to communicate.

The Schuylkill County order in effect before the petition for contempt, recognized that the father’s relationship with the child had deteriorated to the degree that visitation was limited to supervised visitation and specifically ordered reconciliation counseling between the father and his eight year old child.

The father alleged that at some point the mother indicated she would no longer attend or allow the child to attend reconciliation counseling and, if further contempt proceedings were filed, she would not participate.  When the child did not go to reconciliation counseling, a petition for contempt was filed.  Service was made on the attorney who had represented the mother in prior custody and contempt actions and who had entered his appearance.  The mother was not directly served and her attorney indicated that, although he was served, neither he nor his paralegal advised the client of the contempt hearing.

At the contempt hearing the mother/Respondent was called on her cell from the Court but that call was interrupted and, after it was interrupted, the Court was unable to reestablish contact.  On the representations of the petitioning father, the Court found that the mother was in contempt because she had not abided by the order for reconciliation counseling.  In the petition for contempt, the father had asked for reasonable attorney’s fees in the amount of $1,000.00, a finding of contempt and enforcement of the existing order.  At the hearing, in addition to the reasonable attorney’s fees and the finding of contempt, both of which were granted by the Court, the petitioning father asked that Court to go back to an earlier order for custody which was also granted by the Court.

On appeal the mother, who had been found in contempt, raised an issue about service and an issue as to whether or not a modification of an existing custody order could be granted by the Court based upon a contempt petition which did not ask for a modification of custody.

Mother stated that she did not have actual notice which was reinforced by her attorney who indicated that he had notice but had not contacted her.  Mother relied on the case of Everett v. Parker, 889 A.2d 578 (Pa. Super. 2005) in which service was found deficient where, instead of serving the mother directly, the petitioning father served the contempt petition on counsel who had represented the mother in an unrelated matter.  In the case before the Superior Court, the attorney upon whom service was made had entered his appearance and was the attorney representing the mother in the custody matter.  Mother pointed to Pennsylvania Rule of Civil Procedure 1915.12(d) which requires a petition “. . . shall be served upon the respondent by personal service or regular mail.”  However, Pennsylvania Rule of Civil Procedure 440 indicates that where an individual is represented by an attorney, service may be made by  “. . . by handing or mailing a copy to or leaving a copy for each party at the address of the party’s attorney of record endorsed on an appearance or prior pleading of the party.”  After distinguishing the instant case from the Everett case, the Superior Court opined that service upon the attorney under Rule 440 is effective and the attorney’s failure to notify his client does not render service defective.  Valid service was made when the mother’s attorney received a copy of the petition.

Mother was more successful in her contest of the modification of the existing custody order that had not been specifically requested in advance.  In Langendorfer v. Spearman, 797 A.2d 303 (Pa. Super. 2002) the Superior Court held that a trial court may not modify a custody order as a sanction for contempt unless a petition to modify custody has been filed and all the parties have been provided with notice and opportunity to prepare and advocate their respective positions.  See also P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super 2012).

The Court found the case before it to be similar to Langendorfer and P.H.D. The trial court’s modification of custody by reinstating a previous order, even though there was no petition for custody modification before the court, was in error.  The contempt petition specifically asked for two sanctions, payment of reasonable attorney’s fees and a finding of contempt as well as a new order regarding compliance with the existing court order.  The party allegedly in contempt, even if she had reviewed the petition, was not on notice of a custody issue and had no opportunity to prepare a case with regard to that issue.  Thus, the contempt finding was upheld as was the requirement for payment of reasonable attorney’s fees but the modification of the existing order was vacated.