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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.L.T. :
:
Appellant : No. 681 EDA 2017
Appeal from the Order Entered January 5, 2017
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2016-25567
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 13, 2017
K.L.T. (Father) appeals pro se from the order entered January 5, 2017,
in the Court of Common Pleas of Montgomery County, that granted the
petition filed by M.G. (Mother) to change the last name of A.D.T., the parties’
three-year-old child (Child), to A.D.G., her surname.1, 2 K.L.T. contends the
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Former Justice specially assigned to the Superior Court.
1We have changed the parties’ names to initials to protect the privacy of
minor child.
2 The notice of appeal was filed by K.L.T., who is incarcerated, on February
15, 2017. Pa.R.A.P. 903(a) clearly states that the notice of appeal shall be
filed within 30 days after the entry of the order. Pa.R.A.P. 105(b) states that
this court may not enlarge the time for filing a notice of appeal.
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trial court abused its discretion in (1) denying K.L.T.’s motion for continuance
to more properly prepare his defense since he was proceeding pro se, and (2)
failing to take into consideration the best interest of Child when changing
Child’s surname could further alienate the parental bond between them. See
K.L.T.’s Brief at 4. Based upon the following, we affirm.
The trial court summarized the procedural history and facts of this case
as follows:
On October, 24, 2016, [M.G.] filed a Petition to change the last
name of her three year old child, [A.D.T.] to [A.D.G.] [T.] is the
last name of [K.L.T.]. A hearing on this Petition was held on
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However, the trial court docket indicates a notice of appeal was timely
filed on January 27, 2017, but was erroneously rejected by the Montgomery
County Prothonotary for failure to include docket entries, use proper forms,
and attach a certificate of service. See M.G. v. L.D., 155 A.3d 1083, 1090
n.12 (Pa. Super. 2017) (trial court prothonotary lacks authority to reject, as
defective, timely notice of appeal), appeal denied, ___ A.3d ___ [2017 Pa.
LEXIS 1066] (Pa. 2017); Commonwealth v. Williams, 106 A.3d 583, 588-
589 (Pa. 2014) (clerk of courts “is obligated to accept and process notices of
appeal upon receipt in accordance with the Rules of Appellate Procedure,
notwithstanding any perceived defects therein”).
Moreover, because K.L.T. is incarcerated, the prisoner mailbox rule,
under which a prisoner is deemed to have filed the notice of appeal on the
date he presented it to prison authorities for mailing, applies to him in this
civil matter. See M.G. v. L.D., supra, 155 A.3d at 1090 n.12, citing
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) and Thomas v.
Elash, 781 A.2d 170, 176 (Pa. Super. 2001).
Here, because the initial notice of appeal was received by the
Montgomery County Prothonotary on January 27, 2017, within the 30-day
appeal period, it is evident that K.L.T. presented the notice of appeal to prison
authorities during the appeal period. Furthermore, the initial appeal should
have been processed by the Montgomery County Prothonotary. Therefore,
the appeal was timely filed.
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January 5, 2017. Both [M.G.] and [K.L.T.]1 testified at this
hearing.
1[K.L.T.] testified via video conferencing from SCI Laurel
Highlands, where he is currently incarcerated.
[M.G] and [K.L.T.] are the biological parents of [Child]. The
parents were once married to each other, but were divorced on
September 27, 2016. [M.G.] resumed the use of her maiden
name, [G.], shortly after her divorce. [M.G.] has sole legal and
physical custody of [Child].
[M.G.] testified that a major reason she is requesting the name
change is that [Child] has a very close relationship with her family,
and that her family is a strong and loving influence in his life.
[K.L.T.] is incarcerated, and has not seen his son since the child
was six months of age.2
2 [K.L.T.]
testified he last saw [Child] when [Child] was nine
months old.
After the parent[s’] separation, [K.L.T.] was allowed to see [Child]
only at the police station. In September of 2015, when [M.G.]
took [Child] for a visitation, [K.L.T.] was charged with attacking
[M.G.] at the police station. [K.L.T.] also testified that he pled
guilty to aggravated assault, which he described as “stalking
[M.G.’s] lawyer and smacking around two police officers from
Montgomery County.” [K.L.T.] has been incarcerated since that
time, and neither he nor his family has had any contact since his
incarceration.[3]
Trial Court Opinion, 3/30/2017, at 1–2 (record citations omitted).
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3 At the time of the January 5, 2017, hearing, K.L.T. and had been incarcerated
for two years and one month on his sentence of one-to-five years’
imprisonment. See N.T., 1/5/2017, at 3, 25.
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Following the hearing, the trial court entered an order on January 5,
2017, changing Child’s name to [A.D.G.]. This appeal followed.4
K.L.T. first claims that the trial court abused its discretion in denying his
motion for continuance when he requested more time to properly prepare his
defense since he was proceeding pro se.
Our standard of review is well settled:
The trial court is vested with broad discretion in the determination
of whether a request for a continuance should be granted, and an
appellate court should not disturb such a decision unless an abuse
of that discretion is apparent. An abuse of discretion is more than
just an error in judgment and, on appeal, the trial court will not
be found to have abused its discretion unless the record discloses
that the judgment exercised was manifestly unreasonable, or the
results of partiality, prejudice, bias or ill-will.
Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001) (citations
omitted). In determining whether a trial court’s denial of a motion to continue
was tantamount to an abuse of discretion we consider: “whether there was
prejudice to the opposing party by a delay, whether opposing counsel was
willing to continue the case, the length of the delay requested and the
complexities involved in presenting the case.” Papalia v. Montour Auto
Serv. Co., 682 A.2d 343, 345 (Pa. Super. 1996).
The record shows M.G. filed this petition for name change on October
24, 2016. On October 26, 2016, counsel for M.G. sent K.L.T., by certified
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4 The trial court did not order K.L.T. to file a Pa.R.A.P. 1925(b) concise
statement.
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mail/return receipt requested, a time-stamped copy of the petition and a
notice of hearing scheduled for December 14, 2016. A subsequent notice of
hearing was issued, changing the date of the hearing to January 4, 2017. On
November 15, 2017, counsel for M.G. sent a notice of the rescheduled January
4, 2017, hearing to K.L.T. by certified mail/return receipt requested.
On November 28, 2016, K.L.T. filed a request for a 90-day continuance,
asserting he was incarcerated and proceeding pro se, would have limited
access to the prison library, and wished to more fully research the matter.
M.G. opposed the motion for continuance, asserting (1) that K.L.T. had notice
of M.G.’s petition to change the name of Child since October 31, 2016, the
date reflected on the certified mail return receipt, (2) that granting the
continuance would require her to incur the cost of publishing new notices of
the hearing in two newspapers, as required by statute,5 and (3) that a 90-day
continuance would result in a hearing being held more than three months
beyond the filing date of the petition in contravention of 54 Pa.C.S. §
701(a.1)(3)(i).6
By order entered December 16, 2016, the trial court denied K.L.T.’s
motion for continuance. Thereafter, the hearing was rescheduled for January
5, 2017, and took place on that date.
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5 See 54 Pa.C.S. § 701(a.1)(3)(ii).
6Section 701(a.1)(3)(i) provides: “The hearing shall be held not less than
one month nor more than three months after the petition is filed.”
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K.L.T. argues the ability of the court to grant his continuance on a
“special ground” is well within the discretion of the court. K.L.T.’s Brief at 7,
citing Pa.R.C.P. 216(A)(4) (providing grounds for continuance include “Such
special ground as may be allowed in the discretion of the court.”). In making
this argument, K.L.T. cites Commonwealth v. Ross, 350 A.2d 836 (Pa.
1976). Based on our review, we find no abuse of discretion on the part of the
trial court.
Here, a continuance would cause prejudice to M.G. by requiring her to
pay the costs of republishing a new hearing date in two newspapers.
Moreover, K.L.T. had 44 days from November 21, 2016, when he was served
with the notice of the January 4, 2017, hearing, to January 5, 2017, when the
court held the hearing; and he had 65 days, counting from October 31, 2016,
when he was served with the petition and notice of the originally scheduled
December 14, 2016, hearing. Ross, supra, is distinguishable. In Ross,
prospective counsel for the defendant had a day or less to prepare for trial,
and there was no evidence of bad faith by the defendant. Under such
circumstances, the trial court’s denial of a continuance was held to be an abuse
of discretion. Id., 350 A.2d at 840. Here, however, in light of the factors set
out in Papalia, supra, and the record in this case, we conclude K.L.T.’s first
claim warrants no relief.
In the second issue, K.L.T. contends the trial court erred in granting the
name change petition. K.L.T. argues the trial court abused its discretion in
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failing to take into consideration the best interest of the child, when changing
the surname could further alienate the parental bond between them.
K.L.T. claims the trial court “only took into consideration the views of
[M.G.] and the already strong bond the child has with [M.G.] and [M.G.’s]
family.” K.L.T.’s Brief at 8 (footnote omitted). K.L.T. argues prior to his
incarceration, there was a custody agreement in place and he was an active
figure in child’s life, and he was the primary caregiver when the parties were
still married. Id. at 10 (footnote omitted). K.L.T. asserts he and son had
created a bond that continues even though he is now incarcerated, and during
his incarceration he maintains contact with Child through regular
correspondence. Id. Father maintains the trial court’s decision to grant the
petition further alienates and stresses the relationship that has been created
by father and son. Id.
The principles that guide our review are well settled:
Our standard of review involving a petition for change of name,
regardless of the age of the petitioner, is whether there was an
abuse of discretion. An abuse of discretion exists if the trial court
has overridden or misapplied the law, or if the evidence is
insufficient to sustain the order. Further, resolution of factual
issues is for the trial court, and a reviewing court will not disturb
the trial court’s findings if those findings are supported by
competent evidence. It is not enough for reversal that we, if sitting
as a trial court, may have made a differing finding or reached a
different result.
T.W. v. D.A., 127 A.3d 826, 827 (Pa. Super. 2015) (internal citations
omitted).
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When considering a petition to change the name of a minor child,
the best interest of the child should be the standard by which a
trial court exercises its discretion. Id. This Court has further held:
the party petitioning for the minor child’s change of name
has the burden of coming forward with evidence that the
name change requested would be in the child’s best
interest, and that where a petition to change a child’s name
is contested, the court must carefully evaluate all of the
relevant factual circumstances to determine if the
petitioning parent has established that the change is in the
child’s best interest.
In re C.R.C., 2003 PA Super 91, 819 A.2d 558, 560 (Pa. Super.
2003).
In re Change of Name of E.M.L., 19 A.3d 1068, 1069 (Pa. Super. 2011).
Here, the trial court explained its decision, stating:
In ruling on a petition to change a child’s name, general
considerations should include the natural bonds between parent
and child, the social stigma or respect afforded a particular name
within the community, and, where the child is of sufficient age,
whether the child intellectually and rationally understands the
significance of changing his or her name. See In Re Name Change
of Zachary Thomas Andrew Grimes, 530 Pa. 388, 393 609 A2d
158, 161 (1992). These considerations, in particular the first
consideration, favor changing [Child’s] name. [M.G.] and [K.L.T.]
both testified that [K.L.T.] has had no contact with his three year
old child for over two years. While it is true that [K.L.T.] is unable
to see his child due to his incarceration, this resulted from his own
violent conduct. [Child] was, at the most, nine months of age
when he last saw [K.L.T.] and it is likely that [Child] has no
memory of his father. The name change granted allows [Child] to
have the name of the parent with whom he lives, and the only
parent he knows. Thus, it is this court’s opinion that it is in
[Child’s] best interest that his name be changed to [G.]
Trial Court Opinion, 3/30/2017, at 3
We are bound by the trial court’s credibility findings that are supported
by the record. See In re C.R.C., supra, 819 A.3d at 562. Here, the trial
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court concluded M.G. met her burden to show that a name change was in
Child’s best interest where K.L.T. has had no contact with Child since he was
six months old and Child has a different last name than his mother and her
family members with whom there is a close relationship. Based on our
examination of the record, including the transcript of the hearing, and applying
our narrow standard of review, we discern no abuse of discretion by the trial
court.
Accordingly, we affirm.
Order affirmed.
President Judge Emeritus Bender joins in this memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
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