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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
H.P.R. :
:
Appellant : No. 159 EDA 2019
Appeal from the Order Entered November 20, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2018-00303
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED JULY 25, 2019
H.P.R. (Father) appeals pro se from the order denying his emergency
petition to modify custody with respect to his now eighteen-year-old daughter,
A.M.R. (Child), and his emergency petition for contempt in custody. For the
reasons that follow, we dismiss Father’s appeal as moot.
The relevant factual and procedural history of this appeal is as follows.
Father and A.R. (Mother) married in May of 1997. Three children were born
during the marriage: R.R. (born in October of 1997), H.R., III (born in
February of 1999), and Child (born in May of 2001). The parties separated in
late 2017, and Mother filed a complaint in divorce on January 9, 2018.
Thereafter, on March 23, 2018, Father filed an answer and counterclaim to
the complaint in divorce, seeking, in relevant part, shared legal and physical
custody of Child.
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On May 9, 2018, the trial court entered an agreed-upon temporary
custody order, providing Mother and Father with shared legal custody. Order,
5/9/18, at 1. Mother obtained primary physical custody. Id. at 1-2. Further,
the order required Father and Child to attend therapeutic reunification
counseling. Id. at 2. By order entered May 25, 2018, the trial court1
appointed Gerald Cooke, Ph.D. as a custody evaluator, and it required Mother
and Father to share the costs evenly. Custody Evaluation Order, 5/25/18.
On August 14, 2018, Father filed an emergency petition to modify
custody and an emergency petition for contempt. In the emergency petition
to modify custody, Father sought full physical custody, accusing Mother of
engaging in improper parenting and causing Child to be alienated from him.
Emergency Pet. for Modification of Custody Order, 8/14/18, at 8. In the
emergency petition for contempt, Father asserted that Mother refused to
return the paperwork and payment for Dr. Cooke to conduct a custody
evaluation. Emergency Pet. for Civil Contempt for Disobedience of Custody
Evaluation Order, 8/14/18 at 5.
The parties appeared for a hearing on September 21, 2018. At the
hearing, Mother and Father reached a tentative resolution of Father’s petition
for contempt. By order entered September 26, 2018, the trial court awarded
Father partial physical custody of Child for a two-hour brunch each Sunday
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1 Judge Rhonda Lee Daniele presided over this matter until November of 2018.
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and a two-hour dinner each Wednesday2 and directed Father and Child to
resume reunification counseling. Order, 9/26/18, at 2. The order also
provided that if “Plaintiff-Mother and [Child] comply with this [o]rder, it is
understood that the contempt petition will be withdrawn by Defendant-Father,
and no sanctions imposed.” Id. at 3. Further, the trial court scheduled a
custody hearing for November 2018. Id. at 2.
At the hearing on November 19, 2018, Father, acting pro se, presented
the testimony of Mother, Father, and H.R., III. The trial court also conducted
an in camera interview of Child.3 At the conclusion of the hearing, the trial
court evaluated the custody factors on the record and ruled against Father.
On November 20, 2018, the trial court entered the order denying
Father’s petitions, directing Father to participate in individual therapy and
anger management, and requiring Mother and Father to participate in family
therapy. Order, 11/20/18, at 1-2. The trial court declined to enter a formal
custody schedule, while noting, “[Child] may visit with her Father at her
discretion and is encouraged to do the same.” Id. at 1.
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2 The order specified, “Defendant-Father shall not converse with [Child]
regarding the parties’ divorce, financial matters, litigation, and/or Plaintiff-
Mother’s personal life.” Order, 9/26/18, at 2.
3 Judge Carolyn Tornetta Carluccio presided over the November 19, 2018
hearing and entered the November 20, 2018 order that is the subject of this
appeal. Child was approximately seventeen and one-half years old at the time
of the hearing.
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On December 19, 2018, Father timely filed a notice of appeal. Father
filed a Pa.R.A.P. 1925(b) statement on January 17, 2019.4 Father’s Rule
1925(b) statement consists of ten single-spaced pages, in which he asserts
that (1) the trial court erred in its analysis of numerous custody best interest
factors, (2) the court precluded Father from presenting sufficient evidence of
alienation, and (3) Mother’s pre-trial statement contained “many falsehoods”
that the trial court improperly took into account.5 Concise Statement of Errors
Complained of on Appeal, 1/17/19, at 2-7. Father also challenged “[t]he
dismissal of Judge Daniele’s order for a custody evaluation.” Id. at 7.
On appeal, Father has filed a pro se brief that does not comply with
Rules of Appellate Procedure governing the form and content of an appellate
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4 Father failed to file a concise statement of errors complained of on appeal
concurrently with his notice of appeal in violation of Pa.R.A.P. 1925(a)(2)(i)
and (b). On December 27, 2018, the trial court issued an order directing
Father to file a concise statement within twenty-one days. Father timely
complied. Because Mother does not claim prejudice as a result of Father’s
procedural violation, we will not quash or dismiss his appeal as a result of this
procedural misstep. See In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super.
2009); cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010) (holding that
appellant waived all issues by failing to file a concise statement of errors
complained of on appeal when directed by the trial court).
5 Mother filed a motion to quash, asserting that Father’s Rule 1925(b)
statement did not concisely or specifically identify the rulings or errors he
intended to challenge on appeal. This Court denied the motion without
prejudice. Mother has not renewed her objection to Father’s Rule 1925(b)
statement.
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brief.6 However, it appears that Father intends to challenge the trial court’s
findings of fact and conclusions of law with respect to the court’s denial of his
emergency petition to modify custody. Father “respectfully requests that the
decision of [the trial court] be overturned and [Child] be removed from . . .
Mother’s house immediately. [Child’s] 18th birthday is only weeks away
and even a few days with Father would go a long way in reconciling
the alienated relationship.”7 Father’s Brief at 43 (emphasis added). Father
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6 Among other issues, Father’s brief does not contain a statement of the
questions involved or a summary of the argument. See Pa.R.A.P. 2116, 2118.
Although Father includes a lengthy background section, there are essentially
no references to the record to support the facts he asserts. See Pa.R.A.P.
2117(a)(4) (requiring, in relevant part, that a brief contain “[a] closely
condensed chronological statement, in narrative form, of all the facts which
are necessary to be known in order to determine the points in controversy,
with an appropriate reference in each instance to the place in the record where
the evidence substantiating the fact relied on may be found”). Father includes
a section entitled “Errors by the Trial Court.” See Pa.R.A.P. 2119 (setting
forth the requirements of the argument section of a brief). However, Father
fails to include citations to authority beyond quoting various portions of 23
Pa.C.S. § 5328(a). See Pa.R.A.P. 2119(a), (b) (requiring a properly
developed argument for each question presented including a discussion of and
citation to authorities in appellate brief); Commonwealth v. Buterbaugh,
91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (failure to conform to the
Rules of Appellate Procedure may results in waiver of the underlying issue).
This Court could dismiss this appeal based on a defective brief. See
Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996). However,
we will construe Father’s brief liberally. See id. (reiterating that this Court
may construe a pro se litigant’s material liberally but will not act as his
attorney).
7Father certified that he served his brief on April 14, 2019, approximately one
month before Child’s eighteenth birthday.
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also asserts that the trial court erred in dismissing the fact that Mother failed
to comply with the Judge Daniele’s prior order for a custody evaluation.8 Id.
at 43.
Generally, in custody cases under the Child Custody Act, (“the Act”), 23
Pa.C.S. §§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
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8 As to Judge Daniele’s order for a custody evaluation, Father’s argument
consists of the following:
Judge Carluccio gave no reason for the dismissal of the custody
evaluation order ordered by Judge Daniele. She just dismissed it.
Mother suffers from serious Cluster B personality disorders and
she is infecting the children with the same. Mother refused to
comply with Judge Daniele’s April 24th 2018 order and Judge
Carluccio let her get away with it. In Judge Carluccio’s court, there
is no rule of law.
Father’s Brief at 34. We conclude that claim is waived based on the failure to
develop a proper argument. See Pa.R.A.P. 2119(a), (b); Buterbaugh, 91
A.3d at 1262; see also Smathers, 670 A.2d at 1160. In any event, we note
that Father’s argument fails to discuss the September 21, 2018 hearing and
Judge Daniele’s September 26, 2018 order.
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The Act defines “child” as “[a]n unemancipated individual under 18
years of age.” 23 Pa.C.S. § 5322. When discussing a former version of the
Act, this Court observed:
A “child” is defined in this Commonwealth for domestic relations
purposes, including custody proceedings, as “[a]ny
unemancipated person under 18 years of age.” 23 Pa.C.S.[] §
5302 [(repealed effective Jan. 24, 2011)]. The trial court’s
jurisdiction in these proceedings is limited to proceedings
involving children. Though appellant functions at a moderate level
of retardation, chronologically she was eighteen years old at the
time the trial court issued its order. Thus, because she was not
a child at that time, the trial court was without proper
subject matter jurisdiction. While other remedies may be
available to the mother, she cannot compel appellant to
visit her through this type of action. Therefore, we reverse
and set aside the trial court’s order. This decision is in accord with
Schmidt v. Schmidt, . . . 459 A.2d 421 ([Pa. Super.] 1983) in
which we held that an adult cannot be compelled by court order
to visit a parent against his or her will. Schmidt also involved an
adult daughter with reduced mental capacity. However, unlike the
facts in the case before us, there was strong evidence in Schmidt
that the parent seeking visitation was abusive and evoked intense
feelings of fear and anger in the daughter.
Walker v. Walker, 523 A.2d 782, 784 (Pa. Super. 1987) (some citations
omitted) (emphasis added).9
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9 We acknowledge that Walker applied the definition of “child” under a prior
version of the Custody Act. Walker, 523 A.2d at 784. The current version of
the Act contains an almost identical definition. Compare 23 Pa.C.S. § 5302
(repealed effective Jan. 24, 2011) (“[a]ny unemancipated person under 18
years of age”), with 23 Pa.C.S. § 5322 (“[a]n unemancipated individual under
18 years of age”).
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The inability of a court to provide the relief requested by the party also
implicates the mootness doctrine. As this Court has explained:
As a general rule, an actual case or controversy must exist at all
stages of the judicial process, or a case will be dismissed as moot.
An issue can become moot during the pendency of an appeal due
to an intervening change in the facts of the case or due to an
intervening change in the applicable law. In that case, an opinion
of this Court is rendered advisory in nature. An issue before a
court is moot if in ruling upon the issue the court cannot enter an
order that has any legal force or effect.
In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (citations and quotation
marks omitted).10
Here, Child turned eighteen in May of 2019, while this appeal was
pending. Because Child is now eighteen years old, neither Mother nor Father
may be awarded legal or physical custody of Child pursuant to the Act. See
Walker, 523 A.2d at 784. Further, Child is now free to live with Mother,
Father, or neither parent. See id. Father’s request for his now-emancipated
daughter to “be removed from [Mother]’s house immediately” is inconsistent
with any relief available under the Act or that which this Court could provide
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10There are exceptions to the mootness doctrine when: “1) the case involves
a question of great public importance, 2) the question presented is capable of
repetition and apt to elude appellate review, or 3) a party to the controversy
will suffer some detriment due to the decision of the trial court.” D.A., 801
A.2d at 616. This matter implicates none of the exceptions.
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on appeal. See id. Therefore, we conclude Father’s appeal is moot and
dismiss this appeal.11
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/19
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11 Had we not found Father’s issue to be moot, we would determine that the
trial court’s conclusions do not involve an error of law or abuse of discretion.
We may reject the conclusions of the trial court only if they involve an error
of law or are unreasonable in light of the sustainable findings of the trial court.
See V.B., 55 A.3d at 1197. Here, the trial court adequately and
comprehensively explained its findings, and the competent evidence in the
record supports them. Therefore, Father’s arguments, which essentially ask
this Court to reweigh the evidence, would merit no relief. See id.
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A.R. v. H.P.R.
Combined Opinion