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.
