Opinion
J-A07030-17 No. 1231 WDA 2016
04-19-2017
DWAYNE THOMPSON Appellant v. KRISTA ABRAM Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 12, 2016
In the Court of Common Pleas of Allegheny County
Family Court at No: FD-003646-010 BEFORE: OLSON, STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Dwayne Thompson, appeals pro se from the July 12, 2016 order denying his motion to modify an order entered against him under the Protection From Abuse Act ("PFA"). We affirm in part, vacate in part, remand for further proceedings, and deny Appellant's application for relief as moot.
We are in receipt of Appellant's April 11, 2017 application for an expedited decision. Appellant has requested expedited action from this Court, given the fact that the final PFA order expires in August of this year. Given our decision in this memorandum, we deny the application as moot.
The parties have been engaged in a highly contentious child custody and support dispute since July of 2008. Appellee, Krista Abram, filed for support from Appellant in 2008 after genetic testing revealed Appellant was the father of the parties' child (the "Child"). The support action has been pending before Judge Kim Berkeley Clark of the Allegheny County Court of Common Pleas, Family Division. On July 23, 2014, Appellee filed a PFA petition on behalf of herself and the Child, alleging Appellant was physically and emotionally abusive to the Child and using and selling illegal drugs in the Child's presence. On August 12, 2014, Judge Kathryn Hens-Greco entered a three-year PFA order against Appellant prohibiting Appellant from seeing Appellee and the Child. Appellant did not file a timely appeal from the August 12, 2014 PFA order.
On September 6, 2014, Appellant filed a petition for special relief, before Judge Clark, requesting reconsideration of the final PFA order. Judge Berkeley Clark ordered Appellant to present the petition to Judge Hens-Greco. On June 3, 2015, Appellant presented an emergency petition to vacate and expunge the final PFA order to Judge Hens-Greco. Judge Hens-Greco denied relief.
In the interim, Appellant filed an emergency petition to vacate and expunge the PFA order before Judge Berkeley Clark. Judge Berkeley Clark denied relief. --------
Presently at issue is Appellant's June 23, 2016 petition to modify the August 12, 2014 final PFA order. Also on June 23, 2016, Appellee filed a complaint against Appellant for indirect criminal contempt ("ICC") of a prior court order. On July 12, 2016, Judge Clark denied Appellant's motion to modify the PFA order and dismissed Appellee's ICC complaint. The trial court denied Appellant's petition to hold Appellee in contempt. At Appellee's request, the trial court vacated a May 3, 2016 order which permitted Appellant to deliver a cell phone to Appellee's attorney to facilitate phone conversations between Appellant and the Child. Appellant filed this timely appeal, raising five assertions of error:
1. Whether the trial court erred when it heard, allowed[,] and granted [Appellee's] pro se motion to vacate [the May 3, 2016 order] when she is represented by counsel?Appellant's Brief at 6.
2. Whether the trial court erred when it heard, allowed[,] and granted [Appellee's] motion to vacate [the May 3, 2016 order] when she failed to appear for presentment of the motion, violated the order and then filed a pro se motion to vacate?
3. Whether the trial court erred when it denied [Appellant's] motion for contempt?
4. Whether the trial court erred when it denied [Appellant's] petition to modify [the August 12, 2014 final PFA order]?
5. Whether the trial court erred when it once again showed clear bias for [Appellee] and no concern for the best interest of the [Child]?
We begin with a review of Appellant's fourth and fifth issues. Judge Clark reasoned that the coordinate jurisdiction rule prevented her from modifying Judge Hens-Greco's final PFA order. Trial Court Opinion, 10/28/16, at 9-10. We disagree. The trial court relied on Commonwealth v. Charnik , 921 A.2d 1214 (Pa. Super. 2007), wherein this Court noted that a trial court cannot vacate a final PFA order after the appeal period expires. Id. at 1217 n.3. The trial court also cited the well-settled principle that "judges of coordinate jurisdictions sitting in the same court and in the same case should not overrule the decisions of each other." Trial Court Opinion, 10/29/16, (quoting Okkerse v. Howe , 556 A.2d 827 (Pa. 1989)).
We observe that the Domestic Relations Act permits the plaintiff or defendant in a PFA action to file a petition for modification at any time during the pendency of the PFA order. 23 Pa.C.S.A. § 6117(a). The trial court cited § 6117, but nonetheless refused to consider Appellant's modification because she "believed that this motion should have been presented before the [sic] Judge Hens-Greco." Trial Court Opinion, 10/28/16, at 10.
The trial court misapplied the coordinate jurisdiction rule. As is clear from the foregoing law, the propriety of Judge Hens-Greco's final PFA order is not at issue. Appellant did not file a timely appeal from that order, and it is not subject to collateral attack absent extraordinary circumstances not applicable here. Section 6117 permits modification of a final PFA order at any time during the pendency of the order. The merits of a modification petition do not call into question the propriety of the original order, as that order is no longer subject to attack. Rather, the propriety of modification presents a new issue. Therefore, the coordinate jurisdiction rule does not bar Judge Clark from hearing Appellant's modification petition. We vacate Judge Clark's order insofar as it denied Appellant's modification petition and remand for a decision on the merits.
As to Appellant's remaining issues, we deny relief for the reasons explained in Judge Clark's October 28, 2016 opinion. We direct that a copy of that opinion be filed along with this memorandum.
Order affirmed in part and vacated in part. Application for relief denied as moot. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/19/2017
Image materials not available for display.