Opinion
J-A06015-18 No. 1373 WDA 2017
04-03-2018
C.F. AND B.F., Appellants v. L.C. AND E.G., Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 22, 2017
In the Court of Common Pleas of Indiana County
Civil Division at No(s): 12752 CD 2015 BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
C.F. and B.F. (Maternal Grandparents) appeal from the order, dated August 21, 2017, and entered August 22, 2017, that inter alia granted the petition for special relief filed by E.G. (E.G. or Intervenor), awarding her primary physical custody and legal custody of the children, who are the subject of this custody litigation. Additionally, the order directed that "[i]n accordance with [Pa.R.A.P.] 341(C)..., the [c]ourt determines that an immediate appeal of this [o]rder will facilitate a resolution of the entire case." Order, 8/21/17. After review, we deny the motion to quash and affirm the order on appeal.
In a prior appeal, this Court's memorandum provided a summary of the factual and procedural history of this case.
N.C. (Mother) and F.C. (Father) were the biological parents of two children, M.C. (born in 2004) and N.C. (born in 2011) (collectively, Children). Mother died in 2012. After Mother's death, Father and E.G. began dating and eventually came to live together. Father died on December 18, 2015. On the same day, Maternal Grandparents filed a petition for emergency custody of Children, which was granted. On December 21, 2015, L.C. (Paternal Grandmother) filed a petition for emergency custody. By agreement, the December 18, 2015 order was vacated and Maternal Grandparents and Paternal Grandmother were provided equal shared legal and physical custody.
On January 22, 2016, E.G. filed a petition for leave to intervene, arguing that she stood in loco parentis to Children. On February 12, 2016, Maternal Grandparents filed a complaint for custody requesting primary physical custody of Children.
On April 4, 2016, the trial court granted E.G. permission to intervene, and on April 20, 2016, E.G. filed preliminary objections to Maternal Grandparents' complaint. On April 28, 2016, Maternal Grandparents filed an amended complaint for custody. In the amended complaint, Maternal Grandparents contended they have standing to seek primary physical and legal custody of Children pursuant to 23 Pa.C.S. § 5324(2).1 They also averred they have standing to seek partial physical custody of Children pursuant to 23 Pa.C.S. § 5325(1).2
1 That statue provides as follows. "The following individuals may file an action under this chapter for any form of physical custody or legal custody ... (2) A person who stand in loco parentis to the child." 23 Pa.C.S. § 5324(2).
2 That statue provides that grandparents may file for partial physical custody or supervised physical custody "where the parent of the child is deceased." 23 Pa.C.S. § 5325(1).
E.G. again filed preliminary objections. Specifically, she argued that Maternal Grandparents did not have standing to
pursue custody pursuant to 23 Pa.C.S. § 5324(2) because they did not stand in loco parentis to Children. The trial court held a hearing on the preliminary objections, and on October 25, 2016, the trial court entered an order sustaining E.G.'s preliminary objections, concluding that Maternal Grandparents did not stand in loco parentis to Children and therefore could not pursue primary physical and legal custody pursuant to 23 Pa.C.S. § 5324(2).C.F. & B.F. v. L.C., E.G., No. 1713 WDA 2016, unpublished memorandum at 1-3 (Pa. Super. filed May 24, 2017) ( C.F. I ).
Maternal Grandparents filed an appeal to this Court from the October 2016 order. However, based upon the fact that the trial court had not included the required language as directed by Pa.R.A.P. 341(c) and because the order was not a final order resolving all custody claims between the parties, this Court quashed the appeal, i.e., this Court did not have jurisdiction over the appeal.
The pertinent statutory language contained in Rule 341 states:
(b) Definition of final order.—A final order is any order that:Pa.R.A.P. 341(b), (c).
(1) disposes of all claims and of all parties; or
(2) RESCINDED
(3) is entered as a final order pursuant to paragraph (c) of this rule.
(c) Determination of finality.—When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other government unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order.
Following the issuance of this Court's decision in C.F. I in May of 2017, the trial court scheduled a hearing on Intervenor's emergency petition for special relief for August 21, 2017. However, before the hearing was held, Maternal Grandparents filed three motions/petitions: (1) a motion to stay custody action, (2) a petition for expert custody evaluation, and (3) a petition to prohibit relocation. On the date of the scheduled hearing, the trial court issued the order presently on appeal. In that order, the court dismissed Maternal Grandparents' three motions/petitions. The order also granted Intervenor's petition for special relief, awarding primary physical and legal custody to Intervenor, E.G., as she is the only person determined to have standing. The order also granted partial custody rights to Maternal Grandparents and Paternal Grandmother. Additionally, the order provided that "an immediate appeal of this Order will facilitate a resolution of the entire case[,]" pursuant to Rule 341(c). Order, 8/21/17, at 2 ¶ 5. A motion for reconsideration was denied and the instant appeal followed.
Initially, we must resolve Intervenor's second motion to quash this appeal. Intervenor contends that the August 21, 2017 order is not a final order and, therefore, is not appealable. She identifies this Court's docketing statement filed by Maternal Grandparents that acknowledges that the order appealed from is not a final order, but contends that Maternal Grandparents erroneously assert that permission to appeal was granted pursuant to Pa.R.A.P. 1311, which requires the appellant to petition the appellate court for permission to appeal. Although we agree with Intervenor that the procedure pursuant to Rule 1311 was not followed, Intervenor overlooks the trial court's statement in its August 21, 2017 order indicating that an immediate appeal will facilitate a resolution of the entire case under Pa.R.A.P. 341(c). The Notes following Rule 341 specifically state that "[p]aragraph (c) permits an immediate appeal from an order dismissing less than all claims or parties from a case only upon an express determination that an immediate appeal would facilitate resolution of the entire case." Obviously, the trial court made such a statement. Moreover, no requirement exists in connection with this rule that requires a party to seek permission from the appellate court to file an appeal. Therefore, we are compelled to deny Intervenor's second motion to quash.
Intervenor's first motion to quash was denied without prejudice to again raise the quashal request after the appeal was assigned to a merits panel. See Per Curiam Order, 12/29/17.
We now turn to Maternal Grandparents' four issues they raise on appeal:
1. Did the [t]rial [c]ourt err in refusing to allow any of the parties to this action to submit testimony (including that of the children) and/or other evidence with regards to their best interest and the custody factors at the August 21, 2017 hearing, resulting in an [o]rder that is not in the best interest of the minor children?Maternal Grandparents' brief at 10.
2. Did the [t]rial [c]ourt err in failing to consider the then-existing status quo and the second complaint for custody filed by [Maternal Grandparents] in November 2016, at which point in time they had been sharing custody of the minor children and discharging parental duties for a period in excess of six (6) months?
3. Did the [t]rial [c]ourt err in refusing to consider Appellee/Intervenor's request for custody as a relocation in light of the fact that Appellee/Intervenor resides in another town and another school district from [Maternal Grandparents] and Appellee/Paternal Grandmother refusing to analyze any of the custody factors with regards to relocation as set forth in 23 P[a.]C.S.[] [§] 5337?
4. Did the [t]rial [c]ourt err in failing to consider any of the three (3) motions prepared by [Maternal Grandparents], despite the fact that it was conveyed by [c]ourt [a]dministration that these would be heard on August 21, 2017?
We note our scope and standard of review. Appellants' challenge to the propriety of the trial court's order denying their motion for standing to file a custody complaint involves a question of law. Thus, our review is de novo and our scope is plenary.P.T. v. M.H., 955 A.2d 814, 817 (Pa. Super. 2008).
The trial court docket does not contain any reference to a second complaint filed by Maternal Grandparents in November of 2016.
We have reviewed the certified record, the briefs of the parties, the applicable law, and both thorough, well-reasoned opinions authored by the Honorable Joseph A. Nickleach, Senior Judge of the Court of Common Pleas of Indiana County, one dated October 25, 2016, and the other dated October 18, 2017. We conclude that Judge Nickleach's opinions properly dispose of the standing issue in conjunction with the issues raised by Maternal Grandparents. Accordingly, we adopt the court's opinions as our own and affirm the order appealed from on that basis.
Motion to quash denied. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/3/2018
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