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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.S. : IN THE SUPERIOR COURT OF
Appellee : PENNSYLVANIA
:
v. :
:
:
C.S. :
:
Appellant : No. 754 EDA 2016
Appeal from the Order Entered February 23, 2016
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2012-006263
BEFORE: STABILE, SOLANO, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 12, 2016
C.S. (“Father”) appeals, pro se,1 from the order entered on
February 23, 2016 by the Court of Common Pleas of Delaware County with
regard to his Petition for Emergency Special Relief (“the February 2016
Order”). This order instructed the parties to continue to follow the custody
order of September 1, 2015, which had placed physical custody of the
parties’ children with S.S. (“Mother”). The February 2016 Order also
required Mother to continue to receive professional treatment for drug and
alcohol abuse and to be subject to random drug and alcohol testing. We
conclude that we lack jurisdiction over this order, as it is not final or
otherwise appealable. We therefore quash the appeal.
*
Former Justice specially assigned to the Superior Court.
1
Father was represented by counsel at all relevant hearings before the trial
court and through the inception of the instant appeal.
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The parties were married in August 2002 and had four children, the
youngest of whom is five years old.2 In 2012, Mother filed a Complaint in
Divorce, and Father filed a Complaint in Custody. The parties entered into
several custody orders during the course of these proceedings and are
currently governed by the custody order dated September 1, 2015.
Regarding this order, the trial court explained:
The most recent custody order, entered September 1, 2015, was
not entered by agreement but rather at the recommendation of
the custody master, Gregory Hurchalla, and signed as an Order
of the Court by the Honorable William C. Mackrides. The
September 1, 2015 Order did not change physical custody and
granted Mother primary physical custody, but modified legal
custody granting Mother sole legal custody. The September 1,
2015 Order was timely appealed and is pending a de novo
hearing, the scheduling of which has been delayed largely by
Appellant’s prior appeal[3] and the current appeal to the
Pennsylvania Superior Court, which divested the Trial Court of
jurisdiction.
Trial Court Opinion, 4/7/16, at 2.
On December 1, 2015, Mother was arrested and charged with driving
under the influence of alcohol and endangering the welfare of a child. 4
2
The children (collectively, “Children”) were born in 2004, 2005, 2008, and
2010. All four Children are the subjects of this custody matter.
3
The reference is to an appeal of the September 1, 2015 order that was
docketed in this Court at No. 3025 EDA 2015. We quashed that appeal on
November 16, 2015, because Father had not complied with a requirement to
participate in a de novo trial court hearing of the custody master’s
determinations and the September 1, 2015 order therefore was not final and
appealable at that time.
4
75 Pa. C.S. § 2802; 18 Pa. C.S. § 4304.
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Subsequently, on January 13 and 14, 2016, the police were called to her
home to address incidents of intoxication while she was caring for the
Children. See Trial Court Order, 2/23/16, at 1; Trial Court Opinion, 4/7/16,
at 5
On January 15, 2016, Father filed an emergency petition in which he
sought, among other things, to obtain sole custody of the Children. The trial
court’s disposition of that petition is the subject of this appeal. The trial
court summarized the relevant history as follows:
On or about January 15, 2016, Father filed an Emergency
Petition for Special Relief (hereafter “the Emergency Petition”),
raising concerns that Mother was intoxicated during her custodial
periods and requesting that Mother undergo a full psychological
and drug and alcohol evaluation. Father likewise requested that
he be awarded sole physical and legal custody with any visitation
by Mother to be supervised pending the de novo custody hearing
and pending the outcome of the requested evaluations.
The Trial Court granted Father’s Emergency Petition, however,
chose to fashion relief by imposing safeguards for the protection
of the Children pending a hearing, rather than grant the
extraordinary relief Father requested. Specifically, the Trial
Court entered an Order dated January 15, 2016, which required
Mother’s periods of physical custody to be supervised [by an
adult individual] pending a hearing which was scheduled for
January 20, 2016.
On or about January 20, 2016, the Trial Court began the hearing
on the Emergency Petition. At the request of and by agreement
of counsel,[5] the hearing on the Emergency Petition was delayed
to accommodate the experts’ schedules . . . . The hearing on
the Emergency Petition, was not able to be completed on
January 20, 2016. The Trial Court, therefore, entered a
temporary order dated January 21, 2016, which continued to
5
Father disputes the trial court’s characterization of agreement. Father’s
Brief, at 29.
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mandate that Mother’s periods of physical custody be
supervised, continuing the remainder of the provisions of the
September 1, 2015 Order, scheduling additional hearing dates
for February 9, 2016, February 16, 2016, and February 19,
2016, requiring the children’s attendance on specific hearing
dates, ordering a telephone conference with Andrea Serber,
MSS, ordering that Mother continue treatment with Andrea
Serber, MSS as well as the Women’s Emotional Wellness Center,
and ordering that Mother shall be subject to random drug and/or
alcohol testing at the discretion of Andrea Serber.
After the hearing of February 16, 2016, the Trial Court entered
another temporary custody order dated February 19, 2016,
which required the parties to comply with the September 1,
2015 Order with the following additions: (1) Mother shall
continue treatment with Andrea Serber, MSS as well as the
Women’s Emotional Wellness Center, (2) Mother shall continue
to be subject to random drug and/or alcohol testing, at the
discretion of Andrea Serber, and (3) [the parties’ third child]
shall continue with counseling.
Finally, at the conclusion of the last day of testimony on the
Emergency Petition, February 19, 2016, the Trial Court entered
the Order dated February 23, 2016, which is the subject of this
appeal. This Order required the parties to follow the Current
Custody Order dated September 1, 2015, required Mother to
continue treatment with Andrea Serber, MSS and required
participation in random drug and/or alcohol testing at the
discretion of Ms. Serber and complying within one (1) hour of
notification, complete treatment with Women’s Emotional
Wellness Center, and further requiring [sic] that Mother continue
to treat with her psychologist. The Trial Court also issued the
Following Findings of Fact in support of its decision: (1) Father
took appropriate action when confronted with a call from his
[m]inor [s]on on January 13, 2016, (2) Mother had an episode
with alcohol and anxiety on January 13, 2016 and January 14,
2016, (3) Mother’s family took appropriate action to ensure that
the children were safe and cared for on January 13, 2016 and
January 14, 2016, (4) Mother had the support of numerous
family members who were available and willing to assist Mother
during her periods of physical custody, (5) Mother sought
treatment with appropriate providers, including Andrea Serber,
MSS, a Psychiatrist and a support group, (6) Mother continue[d]
to treat and address her issues which now appear under control,
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and (7) Mother has attended to all the needs of the Minor
Children, including counseling.
Trial Court Opinion, 4/7/16, at 2-5 (footnotes omitted).
On March 7, 2016, Father, through counsel, filed a notice of appeal
and a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i). On appeal, Father raises the following issues:
I. Did the Trial Court abuse its discretion and commit
reversible error in failing to comply with [Pa.R.C.P.]
1915.10(a) and [23] Pa.C.S. [§] 5323(d) in failing to
provide its reasoning on the record or in writing in interim
custody orders?
II. Did the Trial Court abuse its discretion in failing to order a
psychological examination of Mother to determine if she
presents a physical, emotional and psychological risk
pursuant to 23 Pa.C.S. [§] 5330 after Mother’s
arraignment for EWOC [endangering the welfare of
children] and DUI, highest level?
III. Did the Trial Court abuse its discretion in failing to
expeditiously hear the emergency petition pursuant to 23
[Pa.C.S. §] 5330(a)?
IV. Did the Trial Court abuse its discretion and demonstrate
bias against the Father by issuing a series of
“unappealable” interlocutory orders denying Father’s
Parental and Constitutional rights?
V. Did the Trial Court abuse its discretion and demonstrate
further bias against the Father ordering compliance with an
illegal custody order of September 1, 2015 which removed
Father’s legal custody for no stated reason either on the
record or in writing?
Father’s Brief, at 7-8.
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Before addressing the merits of Appellants' claims, we must determine
whether this matter is properly before us. Pennsylvania law makes clear
that:
[A]n appeal may be taken from: (1) a final order or an order
certified as a final order (Pa.R.A.P. 341); (2) an interlocutory
order as of right (Pa.R.A.P. 311); (3) an interlocutory order by
permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4)
a collateral order (Pa.R.A.P. 313).
A final order is one that disposes of all the parties and all the
claims, is expressly defined as a final order by statute, or is
entered as a final order pursuant to the trial court's
determination. [T]he appealability of an order goes directly to
the jurisdiction of the Court asked to review the order.”
Veloric v. Doe, 123 A.3d 781, 784 (Pa. Super. 2015) (quoted citation and
quotation marks omitted).6
The test for determining the finality of a custody order was set forth in
G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996) (en banc): “[A]
custody order will be considered final and appealable only if it is both: 1)
entered after the court has completed its hearings on the merits; and 2)
intended by the court to constitute a complete resolution of the custody
claims pending between the parties.”
After review, we concluded that the order at issue here was not a final
order. The order was entered to address interim issues in the parties’
6
Rule 341(b)(2), which defined a final order to include an order “expressly
defined as a final order by statute,” was rescinded in April 2016.
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ongoing custody proceeding, including issues framed by Father’s
“emergency” petition. As the trial court explained:
In the instant action, there are many unresolved custodial
issues, including Appellant's de novo custody appeal. While the
Trial Court did hold a hearing on the Emergency Petition, which
spanned several days, the Order entered February 23, 2016
merely resolved the Emergency Petition and made appropriate
modifications to the existing custody order for the protection,
safety and welfare of the minor Children pending a full
custody trial on the de novo appeal.
Trial Court Opinion, 4/17/16, at 6 (emphasis added).
As the trial court emphasized in its opinion, this case still awaits a final
de novo hearing. Id. at 2. Thus, hearings on the merits of the custody
issues are far from complete. Accordingly, the trial court itself clarified in its
opinion that it did not intend for the February 2016 order to be its final word
on custody:
To the extent that Father complains of unidentified prior Orders
which Father categorizes as both "interim" and "final," the Trial
Court is without sufficient information to ascertain which Orders
Father complains of, contests the identification of a portion of
the complained of Orders as being final, and addresses the
issues as they relate only to the February 23, 2016 Order.
Furthermore, contrary to Father's complaints that the Trial Court
failed to provide its reasoning for entry of the February 23, 2016
Order in contravention of the statutory requirements, the Trial
Court did issue Findings of Fact in support of its decision;
however, the Trial Court contends that such requirement is
reserved for awards of final custody after a full and fair custody
trial on the merits and is not applicable to a Trial Court's
emergency response required to protect the health, safety and
welfare of the Children.
Trial Court Opinion, 4/7/16, at 6.
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The wording of the February 2016 Order does not suggest that the
court was issuing a final order. The court said that “[f]urther Findings of
Fact and Conclusions of Law may be submitted” to it in the event of an
“appeal of this case,” which, while not determinative, might suggest an
intent that the order not be final. The court’s later opinion confirms that the
order was not final. See Trial Court Order, 2/23/16, at 2, “Findings of Fact,”
¶ 8; Trial Court Opinion, 4/17/16, at 6. See also In re F.B., 927 A.2d 268
(Pa. Super. 2007) (child custody order not final or appealable, in part
because wording of order did not indicate that it was a final order). Since
the February 2016 order was not a final order, it was not appealable.
Father argues that, even if the February 2016 order were not a final
order, this Court still has jurisdiction over this matter pursuant to Appellate
Rule 313(a), which permits an appeal from a collateral order. See Father’s
Brief at 1, 17. Under Appellate Rule 313(b):
A collateral order is an order separable from and collateral to the
main cause of action where the right involved is too important to
be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim
will be irreparably lost.
However, as in G.B., Father does not explain or demonstrate how the
collateral order doctrine could apply here. See G.B., 670 A.2d at 721.
Almost by definition, an interim custody order is not “collateral” to or
separable from the main custody cause of action in the case. To the
contrary, the issues Appellant seeks to raise, such as the alleged need for
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psychological evaluations, are inextricably intertwined with the ultimate
question of where custody should be placed. See Miller v. Steinbach, 681
A.2d 775, 778 (Pa. Super. 1996). Hence, the February 2016 Order is not
appealable as a collateral order.7
Finally, the context of an emergency petition does not create an
exception to the requirement of finality for appeal of the trial court’s action.
See G.B., 670 A.2d at 716 (order deciding an emergency petition found
interlocutory); Williams v. Thornton, 577 A.2d 215 (Pa. Super. 1990)
(same). The trial court’s order responding to Father’s emergency petition
was just one more interim order entered by the court as it managed this
fraught proceeding between the parties.
Accordingly, the February 2016 order is neither final nor otherwise
appealable. Consequently, we are bereft of jurisdiction to review it and
must quash the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
7
A rare example of an order in a custody action that is collateral and
therefore appealable is an order denying a petition to intervene in the action.
See K.C. v. L.A., 128 A.3d 774 (Pa. 2015). The appealable order in such a
case is the denial of intervention, not the custody order itself.
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