J. A15008/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.O. : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
:
v. :
:
F.W.M. :
:
: No. 1981 EDA 2015
Appeal from the Order Entered June 16, 2015
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2007-61401
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 15, 2016
Appellant, M.O., (Father) appeals from the June 16, 2015 Order1
entered by the Court of Common Pleas of Bucks County granting the Motion
for Award of Attorney Fees and Costs filed by Appellee, F.W.M., (Mother)
and ordering Father to pay $8,140 in attorney’s fees and $5.25 in costs. We
affirm.2
1
The Order is dated June 16, 2014 but a review of the certified record
indicates that it was filed on June 16, 2015.
2
On April 21, 2016, Mother filed one document entitled “Application for
Further Costs, Counsel Fees, and Damages for Delay Pursuant to Pa.R.A.P.
2744 and Pa.R.A.P. 2751 and Application of Appellee to Dismiss and/or
Quash the Captioned Appeal.” We hereby deny Mother’s Application to
Dismiss or Quash, and deny Mother’s Application for Further Costs, Counsel
Fees, and Damages for Delay without prejudice to seek relief in the trial
court.
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Factual and Procedural History
The trial court composed the following accurate and detailed
procedural and factual history of the case:
This custody dispute has a long and complicated history, as the
dispute began in May of 2007. Accordingly, only the relevant
factual history will be discussed.
Father and Mother have one child together, O.O. (hereinafter
“Child”) from their relationship. Mother and Father were never
married, and the custody dispute over Child began before Child
was born. From May of 2007 through October of 2013, this
custody case was actively litigated in Bucks County. [In addition
to custody proceedings and contempt proceedings, Father has
previously filed an appeal to the Superior Court after Father was
ordered by the Honorable Diane E. Gibbons, another judge of
this [c]ourt, to pay $60,856 in attorney's fees in 2011. This
[c]ourt's award of attorney's fees was upheld on appeal. See
M.O. v. F.W., 112 EDA 2012. Father was a pro se appellant in
that case. Additionally, in June of 2011, Father, again a pro se
litigant, filed a civil lawsuit against Judge Gibbons, in which
Father requested damages in the amount of one billion dollars.
This lawsuit was dismissed. Finally, Father appealed Judge
Gibbons’ custody decision in 2012, and the Superior Court
affirmed this Court's custody determination in that case as well.
See M.O. v F.W., 42 A.3d 1068 (Pa. Super. 2012).] On October
11, 2013, Father filed a Petition to Modify Custody in
Montgomery County. Montgomery County refused to assume
jurisdiction in this matter, stating that "this court cannot imagine
any reason to assume jurisdiction or venue of this action from
Bucks County, unless Bucks County relinquishes jurisdiction."
See id. at ¶ 17. This [c]ourt did not relinquish jurisdiction
despite Father's attempt to file a "Praecipe to Mark the
Captioned Matter, Settled, Discontinued and Ended" with our
Prothonotary. On January 23, 2014, Father filed a Petition to
Close, Dispose, and Transfer the Above Matter to Montgomery
County, PA. This Court held a hearing on that Petition on
February 24, 2015, and we denied the Petition, as we believe
that it is appropriate for Bucks County to maintain jurisdiction in
this matter, as Father still resides in Bucks County and Father,
Mother, and Child have significant contacts in Bucks County.
Additionally, the Bucks County court system is intimately familiar
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with this case, having held at least sixteen hearings on this
matter, including a seven-day custody proceeding in April and
May of 2011. See M.O. v. F.W., 42 A.3d at 1070.
Mother filed her [Motion for Award of Attorney’s Fees and Costs]
on March 7, 2014, in which Mother asked this Court to award
attorney's fees and costs due to the unnecessary litigation
pursued by Father in Montgomery County. Specifically, Mother
asserted that Father continued to pursue litigation in
Montgomery County after Father was advised by the Honorable
Rhonda L. Daniele, of the Montgomery County Court of Common
Pleas, that Montgomery County would not assume jurisdiction
unless Bucks County relinquished jurisdiction. See March 7,
2014 Motion for Award of Attorney's Fees at 2. Mother asserted
that she “was required to litigate in two venues, simultaneously,
in order to enforce this Court's custody order. Mother incurred
unnecessary legal expenses and costs due to Father's willful
ignorance of basic and fundamental procedural and substantive
laws regarding the transfer of venue and jurisdiction in a child
custody matter under the Uniform Child Custody Jurisdiction and
Enforcement Act." See id. at 2-3. We scheduled a hearing for
June 16, 2015 for Mother's [Motion] and for Father's attorney's
Motion to Withdraw as Plaintiff's Counsel. At this hearing, this
[c]ourt was presented with testimony and argument regarding
Father's litigious behavior, and we agreed that Mother was
subjected to unnecessary litigation in both Montgomery County
and Bucks County. Therefore, this Court granted Mother's
Petition and awarded Mother $8,140 in legal fees and $5.25 in
costs.
Trial Court Opinion, dated 7/21/15, at 1-3.
Father timely appealed, but failed to file an accompanying Rule
1925(b) Statement. See Pa.R.A.P 905(a)(2); see also Pa.R.A.P 1925(b).
On July 21, 2015, the trial court filed an Opinion concluding that this Court
should dismiss Father’s appeal for failure to file a Rule 1925(b) Statement.
On July 27, 2015, Mother filed an Application of Appellee F.W.M. to Quash
Appeal of M.O. and Award Attorney Fees Pursuant to Pa.R.A.P. 2744. On
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September 3, 2014, this Court entered an Order denying the Application to
Quash without prejudice, requiring Father to file a Rule 1925(b) Statement
within ten days, and directing the trial court to file a supplemental opinion.
Both Father and the trial court complied.
Issues Raised on Appeal
Father raises the following ten issues for our review, reordered for
ease of disposition:
1. Did Appellee unlawfully relocate the minor child from Bucks
County to Montgomery County?
2. Did Appellee’s unlawful relocation of the minor Child to
Montgomery County and subsequent requirement that all
contact, visits, and the Child’s activities be in Montgomery
County for over two (2) years create a basis for filing for relief
in Montgomery County and constitute having “unclean
hands[?”]
3. Did Appellant improperly file his Petition to Modify Custody in
the wrong jurisdiction?
4. Was filing the Praecipe to Mark Settled Discontinued and
Ended procedurally improper?
5. Do any potential procedural errors in Appellant’s appeal to
Superior Court warrant its dismissal?
6. Are Appellant’s Petition to Modify Custody and/or Praecipe to
Mark Settled Discontinued and Ended vexatious, arbitrary, or
filed in bad faith to warrant the assessment of attorney’s
fees?
7. Did Appellee meet the burden of proof of the definitions of
[“arbitrary,” “bad faith,” or “vexatious,”] as defined in
Thunberg v. Strause, 545 Pa. 607 (1996), 682 A.2d 295 and
were those definitions, along with the Rule on Counsel Fees in
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the Commonwealth of Pennsylvania, properly applied by the
[t]rial [c]ourt?
8. Did the [t]rial [c]ourt display bias against Appellant by
continually overruling Appellant’s objections without hearing
what they were yet sustaining all of Appellee’s objections
without hearing what they were and by denying Appellant the
opportunity to make a proper record?
9. Did the [t]rial [c]court subject Appellant to inadequate
counsel by forcing his counsel to remain, forcing Appellant to
act as co-counsel while being aware of gross inadequacies
and ethical violations by current counsel and then later
admonishing Appellant’s counsel for his inadequate
lawyering?
10. Did the [trial court] improperly accept and act on
Appellee’s deficient and improperly filed Motions, Petitions,
and Pleadings that did not meet the requirements of Pa.R.C.P.
1024(c) whereby they were all improperly verified?
See Father’s Brief at 8-9.
Legal Analysis
The order from which Father appeals provides:
And now, this 16th day of June, 2014 upon consideration of
the Motion of Defendant, [F.W.], for Award of Fees and Costs,
and Plaintiff’s reply thereto, it is hereby,
ORDERED and DECREED that Defendant’s Motion is
granted. Plaintiff is hereby,
ORDERED to pay Defendant $8,140 in attorney fees and
$5.25 in costs within 10 days of the entry of this Order.
Trial Court Order, filed 6/16/15.
Our standard of review of an award of counsel fees is well settled:
“we will not disturb a trial court's determination absent an abuse of
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discretion. A trial court has abused its discretion if it failed to follow proper
legal procedures or misapplied the law.” A.L.-S. v. B.S., 117 A.3d 352, 361
(Pa. Super. 2015) (internal citations omitted).
In custody cases, a trial court may award attorney’s fees “if the court
finds that the conduct of another party was obdurate, vexatious, repetitive
or in bad faith.” 23 Pa.C.S. § 5339.
Issues 1 through 5
In his first five issues, Father challenges filings, rulings, and issues
that were not before the trial court at the June 16, 2015 hearing.
The only two matters before the trial court at the June 16, 2015
hearing were Mother’s Motion for Award of Attorney’s Fees and Costs and
Father’s Counsel’s Motion to Withdraw. The only Order on appeal is the June
16, 2015 Order granting Mother’s Motion for Award of Attorney’s Fees and
Costs. Father’s first five claims of error fall outside the scope of the June 16,
2015 Order and are not properly before this Court in this appeal. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”)
Issues 6 and 7
In the sixth and seventh claims of error, Father contends that the trial
court abused its discretion when it determined that Appellant’s Petition to
Modify Custody and/or Praecipe to Mark Settled Discontinued and Ended was
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“vexatious, arbitrary, or filed in bad faith to warrant the assessment of
attorney’s fees.” Father’s Brief at 8.
The trial court opined:
Father further contends that the [c]ourt abused its discretion
when it awarded Mother's attorney fees after determining that
Father's conduct was vexatious. Father's conduct is directly at
issue because Pennsylvania law dictates that participants shall
be entitled to recover reasonable attorney's fees when the
conduct of another party is arbitrary, vexatious, or in bad faith.
42 Pa. C.S. § 2503. In Nernberg & Associates v. Coyne, 920
A.2d 967, 972 (Pa. Cmwlth. Ct. 2007), the court held that
conduct is arbitrary when decisions are made based on random
or convenient selection or choice rather than on reason or
nature. Similarly, vexatious conduct is defined as annoying
behavior "without reasonable or proper cause or excuse."
Black's Law Dictionary (10th ed. 2014). Here, there was no
proper legal cause to file a petition in Montgomery County.
Judge Daniele of Montgomery County dismissed the petition
because Bucks County had never relinquished jurisdiction. See
June 16, 2015 Hearing Transcript at 12 (hereafter Hearing
Transcript). This [c]ourt found that the Montgomery filing was
merely a blatant attempt at forum shopping. See Hearing
Transcript at 72. Therefore, the [c]ourt appropriately held that
Father's conduct was arbitrary and vexatious.
Trial Court Opinion, dated 9/30/15, at unmarked 5. A review of the record
supports the trial court’s findings. Therefore, we find no abuse of discretion.
Issues 8 and 9
Father’s eighth claim of error is that the trial court displayed “bias
against Appellant by continually overruling Appellant’s objections” and his
ninth claim of error is that the trial court subjected him to “inadequate
counsel by forcing his counsel to remain.” Father’s Brief at 8. For the
following reasons, we conclude both of these issues are waived.
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In the argument section of his brief regarding bias and inadequate
counsel, Father fails to include “discussion and citation of authorities as are
deemed pertinent[,]” “a reference to the place in the record where the
matter referred to appears[,]” and “a [s]tatement of place of raising or
preservation of issues” as required by Rule 2119. Pa.R.A.P. 2119(a); (c);
(e). The law is clear that arguments that are not properly developed are
waived. Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006); see also
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)
(stating “[w]e shall not develop an argument for [an appellant], nor shall we
scour the record to find evidence to support an argument; consequently, we
deem this issue waived.”).
Further, “although this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no special benefit
upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa.
Super. 2003) (citation omitted). “To the contrary, any person choosing to
represent himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be his undoing.”
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (citation
omitted).
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Father failed to comply with the briefing requirements set forth in
Pa.R.A.P. 2119. We are, therefore, unable to conduct meaningful appellate
review of these two issues.3
Issue 10
Father’s tenth claim of error is that the trial court accepted and acted
on Appellee’s deficient and improperly filed motions, petitions, answers, and
pleadings. Father’s Brief at 9. We find this claim to be waived as Father
failed to raise it in his Rule 1925(b) Statement and raises it for the first time
in his Brief. See Pa.R.A.P. 1925(b) (providing that issues not included in a
1925(b) Statement are waived). See also Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal”).
For the reasons stated above, we conclude the trial court did not abuse
its discretion in granting Mother’s Motion for Attorney’s Fees and Costs.
Order affirmed. Mother’s Application to Dismiss or Quash denied.
Mother’s Application for Further Costs, Counsel Fees, and Damages for Delay
denied without prejudice to seek relief in the trial court.
3
Father failed to develop his eighth claim of error – a challenge to the trial
court’s evidentiary rulings – in his 1925(b) Statement as well as his Brief.
The trial court was unable to address this issue and opined: “Father failed to
identify any specific objections that indicated any apparent bias, and
therefore the [c]ourt cannot compose an informed response to this matter.”
Trial Court Opinion, dated 9/30/15, at unmarked 6. Like the trial court, we,
too, were unable to address this claim of error because Appellant failed to
provide any legal basis.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2016
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