D.N. v. D.W.

J-A08011-22
J-A08012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.N. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
D.W. :
:
Appellant : No. 1103 WDA 2021

Appeal from the Order Entered August 2, 2021
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
00807-2020-CD

J.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
D.W. :
:
Appellant : No. 1104 WDA 2021

Appeal from the Order Entered August 2, 2021
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
00187-2020-CD

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: May 13, 2022

These companion cases1 involve D.W. (“Father”), who appeals from two

orders entered on August 2, 2021, that arise from custody actions filed by

D.N. (“Mother-D.N.”) involving G.W. (“Child-G.W.”) (born in October of 2017),
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1 The trial court did not consolidate these two cases; rather, as explained in
the trial court’s two opinions, it decided to hold one combined hearing, not
two separate ones. This Court likewise has not consolidated the two cases
but is issuing a single memorandum in response to Father’s two appeals.
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and J.C. (“Mother-J.C.”) involving D.W. (“Child-D.W.”) (born in December of

2013). After our review, we vacate the trial court’s orders and remand both

cases for further proceedings consistent with this decision.

In prior years, Mother-D.N. and Mother-J.C. each had filed various

petitions for custody. However, at a pretrial conference held on July 26, 2021,

that involved the most recent custody petitions, the trial court determined

that the two matters should be heard together on the same date and at the

same time. The question as to the date of the custody hearing and the notice

received by Father is at the heart of this appeal, i.e., whether the hearing was

scheduled for August 2, 2021, or August 3, 2021. On August 2nd Father did

not appear for the hearing; rather he appeared on August 3rd. Because of

Father’s failure to appear on August 2nd, the date that the hearing was actually

held, Father was found to be in default and the custody petitions filed by both

Mother-D.N. and Mother-J.C. were granted.2

Father filed timely appeals from both orders and raises the following

three issues in both cases:

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2 The first paragraph of the trial court’s orders in each case states:

AND NOW, this 2nd Day of August 2021, Defendant, [Father] …
having failed to appear for custody trial on this docket despite
proper notice at the July 26, 2021 pretrial conference, this matter
being [in] default on the record, it is hereby ordered and decreed
that Plaintiffs[’] Petition[s] to Modify Custody [are] GRANTED.

Trial Court’s Orders, 8/2/2021.

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1. Did the [l]ower [c]ourt err by entering a judgment in a
custody matter by default or on the pleadings in violation of
Pa.R.C.P. No. 1915.9?

2. Did the [l]ower [c]ourt err by awarding custody to the
[Appellees] without determining the best interest of the
[C]hild[ren] by considering all relevant factors in accordance
with 23 Pa.C.S § 5323 and 23 Pa.C.S. § 5328?

3. Did the [l]ower [c]ourt err by failing to provide proper
written notice of the consolidation of two matters and modified
trial date?

Father’s briefs, A08011-122 (No. 1103 WDA 2021) at 9, A08012-22 (No. 1104

WDA 2021) at 10.

In response to Father’s issues, the trial court’s opinion relating to

Mother-D.N.’s petition provides the following:

In his first allegation of error, [Father] alleges that the
[c]ourt committed legal error when it failed to provide written
notice that this matter had been consolidated with [the companion
case] and the custody trial rescheduled. The [c]ourt did not
consolidate the cases except for purposes of holding one hearing
instead of two, though, and [Father] had actual notice about the
change and did not object. (See Conference Transcript,
07/26/2021). His first allegation of error thus strikes the [c]ourt
as mere posturing rather than a legitimate basis for appellate
relief.[3]

In his second and third issues, [Father] alleges that the
[c]ourt erred by entering an order in default or on the pleadings
in violation of Pa.R.C.P. 1915.9 and without determining the best
interests of the child[ren] and other relevant factors pursuant to
23 Pa.C.S.[] §§ 5323 & 5328. [Father] chose not to appear,
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3 The only difference between the trial court’s two opinions centers on the last
sentence of the first paragraph. The opinion relating to Mother-J.C. contains
the following sentences: “With respect to the above-captioned case,
moreover, the hearing date did not change. August 2, 2021 had always been
its scheduled date, as reflected in the order filed April 12, 2021.” A08012-22
(No. 1104 WDA 2021).

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though; he chose not to contest [both Mothers’] claim[s] for
custody. Whether it was forgetfulness or a strategic decision he
thought would provide an advantage, his actions in that regard
told the [c]ourt all it needed to know about his commitment to
protecting his [C]hildren’s best interests and cooperating with the
[Mothers] and the [c]ourt with respect to custody. The result was
the order[s] filed August 2, 2021, whereby Father retained shared
legal custody of his [C]hildren and was guaranteed visits, but
which also guaranteed that they would live primarily with the
parent who had demonstrated by her presence that she was
actively invested in the parties’ child and an appropriate custody
arrangement between them.

Trial Court Opinions, 12/9/2021.

We begin by addressing Father’s issue concerning Pa.R.C.P. 1915.9,

which is included in the custody and visitation section of the Rules of Civil

Procedure and entitled “No Default Judgment.” That section provides

succinctly that “[n]o judgment may be entered by default or on the pleadings.”

Additionally, the Explanatory Comment states in its entirety:

An order of custody, partial custody or visitation may be obtained
in several ways. If the parties reach an agreement, they may
seek a consent order pursuant to Rule 1915.7. If they do not
reach an agreement and contest the right to the relief sought, the
court will enter an order after a hearing pursuant to Rule 1915.10.

Rule 1915.9 governs two additional situations. The first is where
there is no appearance by the defendant. In such a case, there is
both no consent with respect to the relief sought but also no
contest. The rule provides that there shall be no judgment
entered by default.

The second is where the parties seek judgment as a matter of law,
i.e., on the pleadings. While any action will probably involve
questions of law, the determination of the best interest of a child
is never a purely legal determination. Rather, a multitude of
factual determinations is required. Thus the rule provides that
there shall be no judgment entered on the pleadings.

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Pa.R.C.P. 1915.9 Explanatory Comment—1981.

In Joseph E.H. v. Jane E.H., 423 A.2d 739, 742 (Pa. Super. 1980),

due to the mother’s failure to appear at a hearing, this Court held that the

mother “should be given another opportunity to address the merits of the

father’s petition for redetermination of custody.” We explained:

The mother’s failure to appear at the September 14 hearing
appears to have resulted, at least in part, from her counsel’s
confusion regarding the proper procedure for contesting the
jurisdiction of the lower court. We do not believe that a procedural
default arising from such confusion should preclude a parent from
presenting evidence on such a sensitive and important matter as
the modification of a custody decree. Although we do not condone
the conduct of the mother in shunning the September 14 hearing,
we are ever mindful of the fundamental fact that “in all custody
disputes, the best interests of the child must prevail; all other
considerations are deemed subordinate to the child’s physical,
intellectual, moral and spiritual well[-]being.” Garrity v. Garrity,
… 407 A.2d 1323, 1325 ([Pa. Super.] 1979). Cf. Commonwealth
ex rel. Schwarz v. Schwarz, … 380 A.2d 1299 ([Pa. Super.]
1977).[4] Accordingly, we vacate the order of the lower court and
remand this case to enable the mother to appear and address the
merits of the father’s petition for redetermination of custody.

Id.

Accordingly, based upon Pa.R.C.P. 1915.9 and the dictates of the

Joseph E.H. case, we are compelled to vacate the trial court’s order finding

default. Upon remand, a hearing should be held following proper notice to the

parties and the trial court should then formulate findings and conclusions

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4 Both the Garrity and Schwarz cases were handed down prior to the
enactment of Rule 1915.9. Rather, those cases deal with the facts in the
record and the trial court’s analysis or failure to properly analyze those facts.

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directed at determining the best interests of the Children, which include a

determination of the relevant factors found in 23 Pa.C.S. §§ 5323 and 5328.

Orders vacated and the cases remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/13/2022

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