J. A20038/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
J.T.O. AND S.O. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
C.H., : No. 1854 MDA 2016
:
Appellant :
Appeal from the Order Entered October 18, 2016,
in the Court of Common Pleas of York County
Civil Division at No. 2014-FC-001854-03
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 06, 2017
C.H. (“Father”) appeals the October 18, 2016 order entered in the
Court of Common Pleas of York County that adopted the stipulation adopting
the amended custody order (“October 18th Order”) signed by Father and
appellees J.T.O. and S.O. (collectively, “Grandparents”) as the order of
custody of H.H. (“Child”). We are constrained to quash.
The record reflects that Grandparents are the parents of the Child’s
mother, M.H. (“Mother”), who passed away in November 2013. (Complaint
for custody, 10/14/14 at 1, ¶¶ 1 & 3.) At the time of the Child’s birth in May
2009, Father and Mother were married. (Id. at 1, ¶ 4.) Child lived with
Father and Mother until Mother’s death, at which time Child continued to live
with Father. (Id.) On October 14, 2014, Grandparents filed a complaint for
custody alleging that an award of custody to Grandparents would serve the
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best interest and permanent welfare of Child because Grandparents have
always had a significant presence in Child’s life, it is in the Child’s best
interest to continue a relationship with Grandparents, and that Father has
refused to permit Grandparents to have contact with Child. (Id. at 2, ¶ 10.)
Grandparents’ complaint for custody did not allege that Father is unfit to
parent. Grandparents’ complaint sought shared legal and physical custody
of the Child. (Id. at 3.)
On December 3, 2014, the trial court entered an interim order for
custody, pending trial, due to the parties’ failure to reach an agreement at a
pre-trial conciliation conference. (Interim order for custody, pending trial,
12/3/14.) The December 3, 2014 interim order awarded sole legal and
physical custody of Child to Father and granted certain visitation rights to
Grandparents. (Id. at 5.)
On June 16, 2015, Father filed a motion for reconsideration and
emergency or special relief pursuant to Pa.R.Civ.P. 1915.4(e) that requested
the trial court to reconsider the December 3, 2014 interim order and sought
suspension of the Child’s court-ordered overnight visits with Grandparents
alleging that the Child was suffering from stress because he was “required
and forced to spend overnight visits at [Grandparents’] residence].”
(Father’s motion for reconsideration and emergency or special relief
pursuant to [Pa.R.Civ.P.] 1915.4(e), 6/16/15.) The trial court denied
Father’s motion the same day.
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Subsequently, the trial court entered an order that scheduled the
custody trial for October 18, 2016. Immediately preceding trial on
October 18, 2016, Father filed a motion to dismiss proceeding that
requested the trial court to “enter an order dismissing the Complaint as the
statute granting standing to [Grandparents] in this matter at 23 Pa.C.S.A.
§ 5325(1) violates his Fourteenth Amendment rights to due process and
equal protection, as well as Article 1, §§ 1 and 26 of the Pennsylvania
Constitution.” (Father’s motion to dismiss proceeding, 1/18/16.) On that
same date, the parties entered into a stipulation adopting an amended
custody order. (Stipulation adopting amended custody order, 10/18/16; see
also notes of testimony, 10/18/16 at 3-10.) In that stipulation, the parties
agreed to change the terms of the December 3, 2014 interim custody order
“pending resolution of the intended Petition for Permission of Appeal” of
Father. (Id. at 1, paragraph 3.) The parties also stipulated that prior to
trial, Father “raised questions regarding the constitutionality of the Domestic
Relations Code relative to standing and its anti-relocation provisions.” (Id.
at ¶ 1; see also notes of testimony, 10/18/16 at 4-7.) The parties further
stipulated that the trial court acknowledged its opinion:
as authorized pursuant to 42 Pa.C.S.A 702(b)[1] that
said constitutional issues which had been raised by
[Father] involve controlling questions of law as to
which there is substantial ground for difference of
opinion and that an immediate appeal from the order
1
Pa.C.S.A. § 702(b) permits a trial court to certify an interlocutory order for
appeal.
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may materially advance the ultimate determination
of this matter regarding the rights of [G]randparents’
visitation.
Id. at ¶ 2; see also notes of testimony, 10/18/16 at 4-10. The trial court
then entered the October 18th Order, which is the order Father now appeals
from.
Father filed a timely notice of appeal to this court, followed by an
amended notice of appeal and a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2). The trial court then filed a
“statement of lower court pursuant to 1925(a)(2)(ii) of the Pennsylvania
Rules of Appellate Procedure” stating that the reasons for entry of the
October 18th Order are set forth in the stipulation adopting amended custody
order. (Statement of lower court pursuant to Rule 1925(a)(2)(ii) of the
Pennsylvania Rules of Appellate Procedure, 11/23/16.2)
By ordered entered December 6, 2016, this court ordered Father to
show cause, within ten days of the date of the order, as to why this appeal
should not be quashed as having been taken from an interlocutory,
nonappealable order. Father’s response was docketed in this court on
December 19, 2016, which was three days late. On January 4, 2017, this
court entered a per curiam order that discharged the show-cause order and
referred the issue of appealability to this merits panel.
2
We note that on November 23, 2016, the trial court also entered an order
dismissing Father’s October 18, 2016 motion to dismiss proceeding. (Order
dismissing motion, 11/23/16.)
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Father contends that the October 18th Order is a final order pursuant
to Pa.R.A.P. 341(a)(1). (Answer of Father to order to show cause dated
December 6, 2016, 12/19/16.) It appears as though Father’s response to
the rule to show cause contains typographical errors with respect to the
subsection of the rule that Father relies upon because Rule 341(a) does not
contain a subsection (1). Father, however, contends that the trial court’s
October 18th Order “disposed of all claims of all parties, and therefore, is a
final order.” (Id. at unnumbered page 4, ¶ 22.) As such, Father necessarily
relies on Rule 341(b)(1) which defines a final order as any order that
“disposes of all claims and of all parties.” See Pa.R.A.P. 341(b)(1).
In Kassam v. Kassam, 811 A.2d 1023 (Pa.Super. 2002), we stated:
Generally, “a custody order will be considered final
and appealable only after the trial court has
completed its hearings on the merits and the
resultant order resolves the pending custody claims
between the parties.” G.B. v. M.M.B., 448
Pa.Super. 133, 670 A.2d 714, 715 (Pa.Super. 1996)
(quashing appeal as interlocutory where order
allowing father partial custody pending completion of
hearings contemplated additional hearing on ultimate
issues in the case). In the context of finality of
orders, we recognize the uniqueness of custody
orders compared to orders in other civil actions. Id.
670 A.2d at 718 n.9.
Child custody orders are temporary in
nature and always subject to change if
new circumstances affect the welfare of a
child. The Commonwealth has a duty of
paramount importance, to protect the
child’s best interests and welfare. To
that end, it may always entertain an
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application for modification and
adjustment of custodial rights.
Id. (citations omitted). . . .
Id. at 1025.
In Kassam, we then set forth various cases contained in G.B., 670
A.2d 714, that addressed the appealability of custody orders and concluded
that “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.” Kassam, 811 A.2d at 1027,
quoting G.B., 670 A.2d at 721 (emphasis omitted).
Here, the October 18th Order is not a final, appealable custody order.
First, prior to entry of this order, the court did not conduct a hearing on the
merits to determine the best interest of the Child by considering all relevant
factors set forth in 23 Pa.C.S.A. § 5328. Second, the language of the
underlying stipulation contemplates the expectation of the trial court, and,
for that matter, the expectation of the parties, that additional proceedings
will occur; specifically, the stipulation states that the “new custody order [is]
to be effective October 18, 2016, pending resolution of [Father’s appeal].”
(October 18th Order, at 1, ¶ 3). Therefore, the October 18th Order does not
satisfy the test for appealability of a custody order as set forth in Kassam
and is, therefore, a nonappealable, interlocutory order.
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Finally, we note that although the trial court appears to have certified
for appeal Father’s constitutional challenges in its October 18 th Order
pursuant to 42 Pa.C.S.A. § 702(b), Father failed to perfect his appeal
because he failed to file a petition for permission to appeal as required by
Pa.R.A.P. 1311(b), and therefore, this appeal could not be considered under
Pa.R.A.P. 312. See Kensey v. Kensey, 877 A.2d 1284, 1288 (Pa.Super.
2005) (reiterating that a permissive appeal from a certified interlocutory
order will be quashed if appellant fails to file a petition for permission to
appeal).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
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