Opinion
J. S67015/16 No. 688 EDA 2016
10-18-2016
S.B., Appellant v. K.C.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated January 29, 2016, in the Court of Common Pleas of Philadelphia County
Family Court Division at No. 0C0416538 BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Former Justice specially assigned to the Superior Court.
S.B. ("Mother") appeals from the order entered January 29, 2016, in the Philadelphia County Court of Common Pleas, which granted the Petition to Confirm Relocation to Sarasota, Florida, with the minor child, B.M. ("Child"), born in April of 2004, filed by K.C. ("Maternal Grandmother"). The order further allowed Maternal Grandmother to retain primary physical and sole legal custody of Child and suspended Mother's custodial rights until further order of court. After review, we affirm.
The trial court summarized the relevant procedural and factual history, in part, as follows:
On December 15, 2004, Mother, pro se , filed a complaint for primary physical and legal custody of the minor child. On February 9, 20[05], the
Honorable Myrna P. Field dismissed Mother's complaint for lack of prosecution since Mother failed to appear. On September 9, 2006, Mother filed another complaint for custody requesting primary physical and legal custody of the minor child. On December 21, 2006, a final order was entered by the Honorable Idee C. Fox awarding Mother primary physical and legal custody of the child. Said Order was entered without prejudice to father, who was incarcerated at the time.
On November 11, 2012, Maternal Grandmother filed a Petition to Modify custody seeking primary physical and legal custody of the child. Two days later (November 13, 2012), [Maternal] Grandmother filed a Motion for Expedited relief requesting physical and legal custody of the minor child alleging Mother has a drug addiction and mental health issues.
The Honorable Diane Thompson entered a temporary order on December 20, 2012, resolving [Maternal] Grandmother's Motion for Expedited Relief. Mother failed to appear at this listing. However, Mother's counsel appeared on her behalf. The Court made a finding that Maternal Grandmother has been acting in loco parentis on behalf of the child and has standing to file for primary custody. Maternal Grandmother was awarded primary physical and legal custody of the minor child, while Mother was given supervised physical custody at Maternal Grandmother's home, as agreed and arranged by the parties. Mother and Maternal Grandmother were ordered to forthwith drug and alcohol testing, which Mother failed to appear for.
On April 18, 2013, Maternal Aunt and Paternal Grandmother each filed a Petition to Modify Custody, requesting partial physical custody of the minor child. On July 10, 2013, the Honorable Doris A. Pechkurow awarded Paternal Grandmother periods of supervised partial custody on the first Sunday of every month, gradually increasing from approximately two (2) hours to six (6) hours per visit. Father's custodial rights were suspended.
Maternal Grandmother was to retain primary physical and legal custody of the minor child. Mother was to continue to have supervised physical custody at Maternal Grandmother's home, as agreed and arranged by the parties. Mother again failed to appear at this listing. However, counsel was present on her behalf. Father also failed to appear.
On January 9, 2014, Mother filed a Petition to Modify custody seeking partial physical and shared legal custody of the child. The undersigned issued a temporary order by agreement on September 11, 2014, whereby Maternal Grandmother was to retain primary physical and legal custody of the minor child. Mother was given partial custody to be supervised by Maternal Grandmother. Paternal Grandmother's partial custody was suspended. Father's custodial rights continued to be suspended. Also, Mother was ordered to submit to drug and alcohol testing forthwith, which Mother failed to appear for.
On November 3, 2014, the undersigned dismissed Mother's Petition to Modify for lack of prosecution. Mother again failed to appear in court. The temporary order of September 11, 2014 became a final order of court.
On July 24, 2015, Maternal Grandmother filed a Petition to Confirm Relocation, which included a Notice of Proposed Relocation. A Judicial Pre-Trial Conference regarding relocation was held before the undersigned on December 11, 2015. The conference was scheduled to allow the non-relocating party, Mother, an opportunity to be heard with regard to her position regarding the relocation, and to voice any concerns, questions, and/or objections she may have, instead of granting the relocation solely on the pleading (Petition to Confirm Relocation). However, Mother did not appear. A final order was entered, granting Maternal Grandmother's Petition to Confirm Relocation, allowing her to retain primary physical and sole legal custody of the minor child, with Mother to have partial physical custody as agreed
and arranged between the parties, with Maternal Grandmother to supervise.Trial court opinion, 4/28/16 at 1-4 (footnote omitted).
After the undersigned stated the terms of the December 11, 2015 Order, Mother's attorney raised an issue as to service of Maternal Grandmother's Notice of Relocation upon Mother. Subsequently and upon reflection, and affording Mother all opportunities possible to be heard on notice and any surrounding issue(s), on December 14, 2015, the undersigned vacated the Order of December 11, 2015 (allowing Maternal Grandmother and the minor child to relocate to Sarasota, Florida) and relisted the case for December 21, 2015, thereby affording Mother yet another opportunity to be heard on the relocation matter. Mother once again failed to appear. However, her counsel was present. A bench warrant was issued for Mother and for her failure to appear, which remains outstanding to date. Mother's counsel was served with [M]aternal Grandmother's Notice of Proposed Relocation and Petition to Confirm Relocation.
On January 29, 2016, a final order was entered by the undersigned granting Maternal Grandmother's Petition to Confirm Relocation to Sarasota, Florida. The Order allows Maternal Grandmother to retain primary physical and sole legal custody of the minor child. Mother's custodial rights are suspended until further order of court.
On March 4, 2016, Mother, through counsel, filed a timely notice of appeal. However, Mother did not file a contemporaneous concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), as required. Therefore, on March 9, 2016, this court ordered Mother to file a statement by March 21, 2016. After issues with an incorrect address were discovered, additional copies of this order were forwarded to counsel on March 31, 2016; and in response, a statement was filed the following day, on April 1, 2016.
While the order was dated January 29, 2016, notice pursuant to Pa.R.C.P. 236 was not provided until February 3, 2016, upon entry on the docket. See Frazier v. City of Philadelphia , 735 A.2d 113, 115 (Pa. 1999) (holding that "an order is not appealable until it is entered on the docket with the required notation that appropriate notice has been given"). Hence, the notice of appeal was timely filed on March 4, 2016. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is taken).
In children's fast track matters, such as this matter, a concise statement of errors complained of on appeal is required to be submitted with the notice of appeal. Pa.R.A.P. 1925(a)(2)(i).
As Mother ultimately complied with this court's order, once forwarded to counsel at the appropriate location, we do not penalize her. See In re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009) (failure to file a Rule 1925(b) concurrently with a children's fast track appeal is considered a defective notice of appeal, to be disposed of on a case-by-case basis, and will not be dismissed since failure to file the statement is a violation of a procedural rule); Cf. Mudge v. Mudge , 6 A.3d 1031 (Pa.Super. 2011), and J.M.R. v. J.M., 1 A.3d 902 (Pa.Super. 2010) (failure to file a Rule 1925(b) statement of errors complained of on appeal, when ordered by the Superior Court, will result in a waiver of all issues on appeal).
Although the trial court argued prejudice and impairment as a result of "prolonged delay," we disagree. Mother's statement was filed less than one month after her notice of appeal and, notably, only one day after this court's order was forwarded to counsel at the appropriate address.
On appeal, Mother raises the following issues for our review:
1. Whether the December 21, 2015 Order[] is void ab initio , when valid service is not made on [Mother] by [Maternal Grandmother] for the
Notice of Relocation, and if not, whether the Relocation Court obtained personal jurisdiction over Mother to grant [Maternal Grandmother]'s relocation confirmation petition and sua sponte remove Mother's custody rights?Mother's brief at 1.
2. Whether the Relocating Court erred to grant [Maternal Grandmother]'s relocation request, when [Maternal Grandmother] did not with competent valid proof fulfill the statutory requirements to relocate?
Mother incorrectly references the December 21, 2015 order, instead of the January 29, 2016 order.
We observe that, in her brief, Mother stated her issues on appeal somewhat differently from her Rule 1925(b) statement. We, nevertheless, find the issues, aside from her challenge to the issuance of a bench warrant, were preserved for our review. However, while Mother disputes the issuance of a bench warrant in the argument section of her brief, we find that Mother failed to preserve this issue by including it in the statement of questions involved section of her brief. Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa.Super. 2006) (stating that, a failure to preserve issues by raising them both in the concise statement of errors complained of on appeal and statement of questions involved portion of the brief on appeal results in a waiver of those issues).
As we stated in E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015), with regard to our review of a custody order:
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.
E.R., 129 A.3d at 527.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012) (citations omitted).
"When a trial court orders a form of custody, the best interest of the child is paramount." S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014) (citation omitted). The factors to be considered by a court when awarding custody are set forth at 23 Pa.C.S. § 5328(a).
Mother essentially argues a lack of service and lack of personal jurisdiction with regard to Maternal Grandmother's Notice of Proposed Relocation. As a result, Mother contends the trial court's order was void and constitutionally invalid. (Mother's brief at 3-8.) In addition, Mother maintains that the trial court erred in granting relocation. Mother avers that the trial court granted Maternal Grandmother's request for relocation without regard to the factors set forth in Section 5337(h). ( Id. at 11-12.)
Again, Mother incorrectly references the December 21, 2015 order, instead of the January 29, 2016 order.
While the trial court suggests that Mother's issues on appeal should be waived due to the vague and inconcise nature of her statement of errors, we decline to find waiver. (Trial court opinion, 4/28/16 at 7.)
With regard to a proposed relocation, 23 Pa.C.S.A. § 5337 provides for the service of a notice of a proposed relocation and the filing of an objection thereto. 23 Pa.C.S.A. § 5337(c), (d). See also Pa.R.C.P. 1915.17(a), (b). Significantly, Section 5337 additionally allows for the filing of a petition to confirm relocation where there has been no objection filed within 60 days of receipt. 23 Pa.C.S.A. § 5337(e). See also 1915.17(e). The relevant portions of 23 Pa.C.S.A. § 5337 are as follows:
(c) Notice.--
(1) The party proposing the relocation shall notify every other individual who has custody rights to the child.
(2) Notice, sent by certified mail, return receipt requested, shall be given no later than:
(i) the 60th day before the date of the proposed relocation; or
(ii) the tenth day after the date that the individual knows of the relocation, if:
(A) the individual did not know and could not reasonably have known of the relocation in sufficient time to comply with the 60-day notice; and
(B) it is not reasonably possible to delay the date of relocation so
as to comply with the 60-day notice.
. . . .
(d) Objection to proposed relocation.--
(1) A party entitled to receive notice may file with the court an objection to the proposed relocation and seek a temporary or permanent order to prevent the relocation. The nonrelocating party shall have the opportunity to indicate whether he objects to relocation or not and whether he objects to modification of the custody order or not. If the party objects to either relocation or modification of the custody order, a hearing shall be held as provided in subsection (g)(1). The objection shall be made by completing and returning to the court a counter-affidavit, which shall be verified subject to penalties under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities), in substantially the following form[.]
. . . .
(2) An objection made under this subsection shall be filed with the court within 30 days of receipt of the proposed relocation notice and served on the other party by certified mail, return receipt requested.
(3) If notice of the proposed relocation has been properly given and no objection to the proposed relocation has been filed in court, then it shall be presumed that the nonrelocating party has consented to the proposed relocation.
(4) If a party who has been given proper notice does not file with the court an objection to the relocation within 30 days after receipt of the notice but later petitions the court for review of the custodial arrangements, the court shall not accept testimony challenging the relocation.
(e) Confirmation of relocation.--If no objection to the proposed relocation is filed under subsection (d), the party proposing the relocation shall file the following with the court prior to the relocation:
23 Pa.C.S.A. § 5337(c)(1) & (2), (d), and (e) (counter-affidavit regarding relocation omitted from (d)); see also Pa.R.C.P. 1915.17(a), (b), (e).(1) an affidavit stating that the party provided notice to every individual entitled to notice, the time to file an objection to the proposed relocation has passed and no individual entitled to receive notice has filed an objection to the proposed relocation;
(2) Proof that proper notice was given in the form of a return receipt with the signature of the addressee and the full notice that was sent to the addressee.
(3) a petition to confirm the relocation and modify any existing custody order; and
(4) a proposed order containing the information set forth in subsection (c)(3).[]
This provision does not require a hearing.
After careful review of the record, Mother's brief, the applicable law, and the well-reasoned opinion of the Honorable Michael Fanning, we conclude that Mother's issues merit no relief. We discern no error of law or abuse of discretion. As the record supports the trial court's decision, we will not disturb it. Accordingly, we affirm on the basis of the trial court's opinion of April 28, 2016. As aptly stated by the trial court, "Based upon the record evidence, Mother was clearly aware of Maternal Grandmother's proposed relocation prior to the scheduled conference and despite being represented by counsel, did nothing to attempt to prevent or address Grandmother's proposed relocation in any respect." (Trial court opinion, 4/28/16 at 16.) Moreover, Mother, who had a history of failing to appear, was provided "ample opportunity to appear in court to address Maternal Grandmother's relocation." ( Id. at 17.)
Maternal Grandmother failed to file a brief.
Counsel conceded Mother was fearful due to an outstanding criminal bench warrant. (Notes of testimony, 12/21/15 at 7.)
For the foregoing reasons, we affirm the order of the trial court granting Maternal Grandmother's Petition to Confirm Relocation to Sarasota, Florida, allowing Maternal Grandmother to retain primary physical and sole legal custody of Child, and which suspended Mother's custodial rights until further order of court.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/18/2016
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