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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
M.B. : No. 535 EDA 2020
Appeal from the Order Entered January 10, 2020
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): No. 0C1307950
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
DISSENTING MEMORANDUM BY COLINS, J.: FILED OCTOBER 09, 2020
I respectfully dissent, because I believe that the custody order entered
January 10, 2020 (“Order”), was properly appealable as a final order.
Primarily, I disagree with the majority as to the applicability of Cady v.
Weber, 464 A.2d 423 (Pa. Super. 1983), to the current action, as the
procedural posture of that case clearly parallels that of the current appeal.
The language of the Order itself is crucial. As the majority notes, the
Order granted primary physical custody of P.L. (“Child”) to Mother, partial
physical custody of Child to Father, and shared legal custody of Child to
Parents; it thereby changed the prior custody arrangement which had
provided Mother with sole physical and legal custody of Child and had limited
Father to supervised visitation at the Philadelphia Family Court Nursery. The
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* Retired Senior Judge assigned to the Superior Court.
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Order further stated: “A home investigation is ordered on Father’s residence.
Once a home inspection demonstrates that the Father’s home is adequate for
[C]hild, he then may resume partial physical custody. After the home
investigation is received, the court will send an order confirming Father’s new
custody schedule.” Order, 1/10/2020, at 1-2. The Order made no mention
of additional hearings but included an examination of the statutory custody
factors at 23 Pa.C.S. § 5328(a).
Before reaching my analysis, I also wish to note that Mother’s response
to the Rule to Show Cause as to the finality of the Order did more than merely
“assert[] the order was final.” Majority Memorandum at 3-4. Mother’s
response of March 6, 2020, argued that the Order was final, because: (1) no
further hearings were scheduled; and (2) the Order resolved the custody
claims. Letter Brief of Mother in Response to the Order of March 4, 2020,
3/6/2020, at 4-5 (citing Cady, 464 A.2d at 426).
In Cady, the trial court entered a custody order but also “ordered
additional studies to be compiled of the children during visits in the parties’
respective homes. The judge directed that those reports be forwarded to him,
upon their completion, for further consideration.” 464 A.2d at 426. This Court
concluded that the order in question was final, because it resolved the ultimate
issue between the parties, namely whether custody should be transferred to
the children’s mother. In addition, this Court noted that the home studies
were not designed to allow reconsideration of its determination but rather to
implement that determination. Id.
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As in Cady, the trial court in the current matter entered a custody order
but ordered a home study that was to be forwarded to the trial court for further
consideration. Compare Order, 1/10/2020, at 1-2, with Cady, 464 A.2d at
426. The Order resolved the ultimate issue between the parties, namely who
should have physical custody of Child and when. Compare Order, 1/10/2020,
at 1-2, with Cady, 464 A.2d at 426. Additionally, there is nothing in the
Order itself1 indicating that the home study was intended to allow
reconsideration of the trial court’s determination. Instead, the language that,
upon the trial court’s receipt of the home study, Father will be permitted to
“resume partial custody” and “the court will send an order confirming Father’s
new custody schedule” indicates that the trial court did not intend to
reconsider its holding, only to confirm the safety of implementing it.
Compare Order, 1/10/2020, at 1-2, with Cady, 464 A.2d at 426.
Despite Cady’s age of more than three and a half decades, no
subsequent conflicting case law exists, and Cady remains in line with more
recent case law on the determining the finality of custody order. In G.B. v.
M.M.B., 670 A.2d 714 (Pa. Super. 1996) (en banc),2 an en banc panel of this
Court explained:
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1 As opposed to a letter by the trial court, outside the certified record
submitted from the Court of Common Pleas and prompted by a Rule from this
Court directed to Mother, not to the trial court.
2Although G.B. is almost a quarter-century old, the portions of it quoted below
have been cited by more modern cases, including J.P. v. J.S., 214 A.3d 1284,
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[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. . . .
Sawko v. Sawko, 425 Pa.Super. 450, 625 A.2d 692 (1993), . . .
involved an appeal from an order entered in response to a
mother’s petition to modify an order entered five weeks earlier
which awarded primary custody to her child’s father. The trial
court conducted a hearing on the petition to modify at which both
parties were permitted to put on as much evidence as they
wished. At the conclusion of the hearing, the court entered an
order which denied the petition to modify primary custody but
increased the mother’s partial custody rights and scheduled an
additional review hearing about four months in the future. This
court noted, without elaboration, that the order was interlocutory
and that mother’s appeal therefrom was premature and subject to
quashal. Id. at 458, 625 A.2d at 696.
The reasons for this conclusion are clear. Although the court’s
order was entered after a full hearing, it clearly was not intended
to constitute a complete resolution of the issues pending between
the parties. . . . [T]he trial court’s order did not completely resolve
the issues raised by the parties unless and until further
proceedings were initiated by a party. Rather, the Sawko court’s
order, although declining to grant the ultimate relief sought by the
petitioner-mother, made an adjustment in its previously ordered
custody arrangement and scheduled a further review of the
matter. By scheduling further review for a date certain
rather than leaving it up to the parties to seek such review,
the trial court made it clear that the ultimate issues between the
parties remained under consideration. The court’s order was
merely intended, in light of the brief time period between its initial
custody order and the petition for modification, to allow the court
more time to study the effects of the ordered arrangement upon
the child and to make a final determination at a later date as to
whether a modification of primary custody would be in the child’s
best interest.
Id. at 715, 719–20 (italicized emphasis in original; bolded emphasis added).
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1286–87 (Pa. Super. 2019), and Kassam v. Kassam, 811 A.2d 1023, 1027–
28 (Pa. Super. 2002).
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In the current matter, the trial court made no mention of future hearings
in the Order and scheduled no later hearings. Even if it had anticipated future
hearings on Child’s custody, as it alleged in its March 2020 correspondence,
the trial court had already completed its hearing on the merits of Mother’s
motion to modify custody and was only waiting on the written report of the
home investigation, Order, 1/10/2020, at 1-2, not on any additional evidence
to be presented at a hearing. See G.B., 670 A.2d at 715 (“completed its
hearings on the merits”). The Order gives every indication that it was a final
resolution as to the filing at issue and the evidence in support thereof and
included an examination of the custody factors set forth in 23 Pa.C.S.
§ 5328(a) and a best-interest analysis. Order, 1/10/2020, at 2-3; see G.B.,
670 A.2d at 720. The trial court also addressed the custody factors
enumerated in Section 5328(a) in its opinion. Trial Court Opinion, dated
April 16, 2020, at 10-17.3 For these reasons, I would conclude that the Order
was final.
Furthermore, assuming the Order were not final for the reasons
discussed above, I would observe that custody orders present unique
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3 Specifically, the trial court found that the third, fourth, fifth, sixth, eighth,
tenth, eleventh, fourteenth, and fifteenth custody factors applied equally to
both Parents or were inapplicable. Trial Court Opinion, dated April 16, 2020,
at 12-16. Consequently, its decision rested entirely upon the first, second,
seventh, ninth, twelfth, and thirteenth custody factors. Id. at 10-15. The
trial court found the ninth, twelfth, and thirteenth custody factors to be in
Mother’s favor, and she thus did not raise any appellate challenges relating to
those factors. Id. at 14-15. In its opinion, under the heading for the sixteenth
“catch-all” custody factor, the trial court discusses its credibility and weight
determinations and does not address any additional evidence. Id. at 16.
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procedural circumstances that have allowed this Court to review trial court
orders modifying custody that are ostensibly temporary. See E.B. v. D.B.,
209 A.3d 451, 466 (Pa. Super. 2019).
Of course, all custody awards are temporary insofar as they are
subject to modification by an ensuing court order any time that it
promotes the child’s best interest. Thus, by force of
circumstances, no award of child custody is permanent regardless
of whether the order is styled as interim or final.
Id. at 462 n.13 (citation and internal quotation marks omitted). Additionally,
“the slowness of the judicial machinery often turns an ostensibly temporary
order into a de facto status quo[.]” Id. at 466 (citation and internal quotation
marks omitted). In J.M. v. K.W., 164 A.3d 1260, 1269 (Pa. Super. 2017) (en
banc), this Court found that an “interim order was temporary in name only”
where “[i]t carried the same force as final custody order[,]” even though there
“still has not been a formal determination of the children’s best interest that
would qualify as a ‘final’ order.” Analogously, even if the Order is an ostensibly
temporary, the Order has created a new status quo for the custody
arrangements and has the same force as a final order. Id.; E.B., 209 A.3d at
466.
Accordingly, whether the Order is considered a final order or an
ostensibly temporary order with the force of a final order, I would find that it
to be instantly appealable and reviewable.4 Consequently, I believe that this
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4 In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
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Court can and should proceed to address Mother’s substantive appellate issues
challenging the content of the Order itself and contending that the trial court
failed to consider, to weigh, and to state findings of the statutory custody
factors. Mother’s Brief at 4-5, 15, 38 (citing 23 Pa.C.S. § 5328).5 Hence,
I respectfully dissent.
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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.
D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (emphasis added)
(quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).
5 We need only focus our analysis on the first, second, and seventh custody
factors. 23 Pa.C.S. § 5328(a)(1)-(2), (7) (“Which party is more likely to
encourage and permit frequent and continuing contact between the child and
another party[,]” “[t]he present and past abuse committed by a party or
member of the party’s household, whether there is a continued risk of harm
to the child or an abused party and which party can better provide adequate
physical safeguards and supervision of the child[,]” and “[t]he well-reasoned
preference of the child, based on the child’s maturity and judgment[,]”
respectively); see also Trial Court Opinion, dated April 16, 2020, at 10-11
(analysis of first custody factor (citing N.T. at 40-42)), 11-12 (analysis of
second custody factor (citing N.T. at 48-50, 56-57)), 13-14 (analysis of
seventh custody factor)
Pursuant to my review of the record, I am deeply troubled by a disconnect
between the evidence of record and the trial court’s conclusions. For example,
the trial court’s statement that “Mother did fail to bring the child to the
Philadelphia Court Nursery as ordered” is unfounded. Trial Court Opinion,
dated April 16, 2020, at 10 (citing N.T. at 40-42). The record demonstrates
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that Mother only failed to bring Child to two supervised visitations: August 4,
2020, which she explained was due to her fear of Father; and September 22,
2020, due to her employer unexpectedly requiring her to work a double shift.
N.T. at 40-43. However, Mother brought Child to all of the visits for the
month-and-a-half in between. Id. at 41-42. Accordingly, if we were to reach
the merits of this matter, I would hold that the findings of the trial court are
not supported by competent evidence of record. D.K., 102 A.3d at 478.