J-A12031-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JOSHUA DEAR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HARSHAL DEAR : : Appellant : No. 3023 EDA 2023
Appeal from the Order Entered October 31, 2023 In the Court of Common Pleas of Chester County Civil Division at No(s): 2022-05035-CU
BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E. *
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 13, 2024
Harshal Dear (“Mother”) has filed an appeal challenging five separate
orders filed on October 31, 2023 with respect to the custody litigation between
Mother and Joshua Dear (“Father”) (collectively, “Parents”) concerning their
biological son, M.D., born in February 2020.1 We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 As discussed further infra, Mother’s notice of appeal purported to collectively challenge five separate orders concerning the parties’ respective custody awards, contempt, and sanctions. We emphasize with disapproval that Mother’s filing of a single appeal under these circumstances was improper. It is well-established that “a single appeal is incapable of bringing on for review more than one final order, judgment[,] or decree.” Gen. Elec. Credit Corp. v. Aetna Cas. & Sur. Co., 437 Pa. 463, 469-70, 263 A.2d 448, 452 (Pa. 1970); see also Pa.R.A.P. 341 cmt.; Pa.R.A.P. 512, Note. This Court may quash appeals of this nature where “no meaningful choice” can be made as to the multiple orders implicated by a litigant’s single appeal. Id. However, an error of this nature need not be deemed “fatal” when it is possible for the trial (Footnote Continued Next Page) J-A12031-24
We glean the relevant factual and procedural history of this matter from
the certified record, which the trial court has aptly summarized, as follows:
The parties were married on April 12, 2018. They are the parents of one child, M.D., born [in February 2020]. The parties had decided to divorce, and Mother initiated a divorce action on January 11, 2020 . . . .
[Thereafter,] the parties engaged in a “nesting” arrangement wherein M.D. remained in the [marital] home and the parties moved in and out on a week on/week off basis. Father filed for custody on March 23, 2022. The parties subsequently entered into a co-parenting and co-habitation agreement[, which was filed on June 2, 2022, and provided, inter alia, that Parents would have shared legal and physical custody of M.D. See Father’s Custody Complaint, 7/8/22, at Exhibit A.] . . . . At some point, Mother was no longer able to . . . honor the nesting agreement and returned to living in the marital residence on a full-time basis. Father also went back to living at the marital residence on a full-time basis. Father’s custody action was dismissed after a conciliation as the parties were still residing under the same roof.
Mother obtained employment in the Plymouth Meeting area and informed Father that she was moving and taking M.D. Father did not pose an objection to Mother moving or to Mother taking M.D. on her custodial time; however, he never said that she could move and keep M.D. full-time, which is what she effectively did. She also changed M.D.’s daycare to one closer to her home without Father’s knowledge or consent. On July 8, 2022, Father filed the instant [custody] action.
The parties appeared for a custody conciliation on September 16, 2022[,] and an [interim custody] order was entered on September 20, 2022, granting the parties shared legal custody and Mother primary physical custody. . . . [On December 1, 2022, Mother filed a petition for contempt alleging Father had failed to abide by certain aspects of the interim custody order. On January 30, ____________________________________________
court to ascertain and address the arguments presented. See Dong Yuan Chen v. Saidi, 100 A.3d 587, 589 n.1 (Pa.Super. 2014). Instantly, the trial court was able to identify and substantively respond to Mother’s arguments. Under these circumstances, we decline to quash. See id.
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2023, Father filed a petition for sanctions alleging that Mother had forged a document to falsely indicate that Father had been diagnosed with an autism spectrum disorder (“ASD”). A consolidated trial on the various pending petitions] was scheduled for March 14 and 15, 2023. At the conclusion of those two days . . ., due to the court’s concern about Mother’s behavior, a psychological evaluation was ordered for her. At Mother’s request, the court ordered Father to undergo a psychological evaluation as well.[2]
The [c]ourt found Mother’s behavior to be detrimental to M.D., as she continued her quest to have him labeled with a special need, be it a sensory issue or [ASD], and granted Father sole legal custody to stop the unrelenting health care appointments for M.D. and shared physical custody. . . .
Opinion and Order, 10/31/23, at 2-3. On July 7, 2023, Father filed a petition
for contempt alleging Mother had violated portions of the interim custody
order concerning M.D.’s daycare. After the trial court received the respective
psychological evaluations of Parents, it held additional hearings on the
pending custody matters on August 21, 23, 25, and 30, 2023.
On October 31, 2023, the trial court filed five separate orders that: (1)
awarded Father sole legal custody and primary physical custody of M.D.; (2)
directed Mother to pay $5,000 in legal fees due to her “dilatory conduct” in
connection with these custody proceedings; (3) denied Mother’s December 1,
2022 petition for contempt; (4) granted Father’s January 30, 2023 motion for
sanctions and directed Mother to pay $1,200; and (5) granted Father’s July 7,
2 Specifically, the certified record generally indicates that Mother undertook a concerted, unsuccessful effort to diagnose Father and M.D. with ASD. Given the nature of our holding in this matter, we will not discuss this issue further.
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2023 petition for contempt and awarded him $1,000 in legal fees. See Orders,
10/31/23; Custody Order, 10/31/23, at 1-9 (unpaginated).
On November 30, 2023, Mother filed a single, timely notice of appeal
purporting to challenge all five orders and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On
January 2, 2024, the trial court filed a Rule 1925(a)(2)(ii) opinion. 3
Mother has raised the following issues for our consideration:
1. Did the [c]ourt commit reversible error when [it was] provided with an ex parte letter from Father’s counsel[,] which it accepted as fact and used as the basis to strip Mother’s legal custodial rights, and reduce her physical custodial time regarding the 3[-]year-old child, without holding a hearing, and thus deprived her of her substantive and due process fundamental rights to a fair trial under the law, and further her substantial fundamental right to be a parent?
2. Did the trial court err as a matter of law when it failed to conduct a trial and conclude a case within the time required by [Pa.R.C.P. 1915.4], and specifically (c) regarding [t]rial[?]
3 In her Rule 1925(a)(2)(i) and (b) statement, Mother set forth twenty-four allegations of error spanning eleven pages, thereby straining the conciseness that is required of such submissions. In its Rule 1925(a)(2)(ii) opinion, the trial court opined that Mother’s appellate claims should be waived for this reason. See Trial Court Opinion, 1/2/24, at 4-6. Despite Mother’s voluminous allegations, however, it is clear from the trial court’s filings that it was able to readily identify and respond to Mother’s alleged assignments of error. See id. at 6-32. Furthermore, Mother has significantly truncated the issues presented in her brief to this Court. Accordingly, we decline to find waiver under these circumstances. See Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 319 n.3 (Pa.Super. 2015) (declining to find waiver despite litigant raising thirty-six claims of error in a concise statement where “the trial court was able to address the general issues raised” in complex litigation, the issues were winnowed in the appellate brief, and there was no evidence of bad faith).
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3. Did the [c]ourt commit reversible error when it did not issue the [o]pinion in the time proscribed by Pa.R.C.P. 1915.4(d), and further prejudiced Mother’s rights, and specifically, the [c]ourt remained [u]nresponsive, after already not conducting the trial pursuant to Pa.R.C.P. 1915.4(c)?
Mother’s Brief at 3-4 (issues reordered for ease of disposition; cleaned up).
Our relevant standard and scope of review is well-established:
Our standard of review over a custody order is for a gross abuse of discretion. Such an abuse of discretion will only be found if the trial court, in reaching its conclusion, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias, or ill-will as shown by the evidence of record.
In reviewing a custody order, 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 trial court 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.
Rogowski v. Kirven, 291 A.3d 50, 60-61 (Pa.Super. 2023) (cleaned up).
As with all custody-related matters, this Court’s “paramount concern is
the best interest of the child involved.” Id. at 61 (internal citation and
quotation omitted). Indeed, Pennsylvania law provides that the court is only
empowered to change an existing custody order if the modification will “serve
the best interest of the child.” 23 Pa.C.S.A. § 5338(a). To that end, the Child
Custody Act sets forth a number of factors at § 5328(a) that a court must
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consider prior to modifying an existing custody order. See E.B. v. D.B., 209
A.3d 451, 460 (Pa.Super. 2019); 23 Pa.C.S.A. § 5328(a)(1)-(16). While a
court’s consideration of these factors is mandatory, “it is within the trial court’s
purview as the finder of fact to determine which factors are most salient and
critical in each particular case.” Id. (cleaned up).
In order to evidence its consideration of these elements, custody courts
must set forth a discussion of these best-interest factors “prior to the deadline
by which a litigant must file a notice of appeal.” A.V. v. S.T., 87 A.3d 818,
820 (Pa.Super. 2014). Instantly, the custody court provided a timely and
complete assessment of the sixteen Section 5328(a) factors in an opinion filed
contemporaneously with its October 31, 2023 custody order. See generally
Order and Opinion, 10/31/23, at 1-25 (unpaginated).
We will begin our review by addressing Mother’s claim concerning an
allegedly ex parte communication sent by Father’s counsel to the trial court.
See Mother’s Brief at 21 (“The trial court in this case relied upon an ex parte
letter provided by [Father’s] counsel which contained numerous allegations
against Mother which the [c]ourt accepted whole-cloth.”). Mother’s argument
concerns a letter dated March 17, 2023, which was sent by Father’s counsel,
Elizabeth C. Early, Esquire, to the trial court via email and first-class mail.
This document appears in the certified record as part of Mother’s trial exhibits.
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See Mother’s Exhibit 48. At the time this letter was sent, Mother was still
represented by Steven H. Rubin, Esquire, who withdrew on March 20, 2023. 4
“An ex parte communication, by definition, involves the inclusion of one
party in a consultation with a judge over the exclusion of another.”
Commonwealth v. Gonzalez, 112 A.3d 1232, 1240 (Pa.Super. 2015). As a
general matter of American jurisprudence, ex parte communications are
heavily disfavored: “Courts around the country generally agree that material
ex parte communications are improper in any case. They can extraneously
influence decisions by introducing information outside the court record, and
can do so unfairly because the communications are not shared with all
participants.” Commonwealth v. McClure, 172 A.3d 668, 689 (Pa.Super.
2017). Accordingly, ex parte communications are “widely forbidden as a
matter of procedure, due process, and ethics, as they deprive a litigant of the
right to a fair trial before an impartial tribunal.” Id.
Our review indicates that Mother has misrepresented the nature of the
at-issue letter. Specifically, the letter indicates that it was also
contemporaneously transmitted to Attorney Rubin, i.e., Mother’s attorney of
record. See Mother’s Exhibit 48. Indeed, at trial, Mother introduced the email
in which Attorney Early sent this letter to Attorney Rubin, thereby verifying
that he received a copy of the letter. See Mother’s Exhibit 51. Moreover, the
4 We note that Mother subsequently retained replacement counsel.
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text of the letter reveals that Attorney Early had provided Attorney Rubin with
advance warning of her intent to send this letter to the trial court. See
Mother’s Exhibit 48 (“I advised Mr. Rubin that I intended to write to the
court.”). Furthermore, Mother testified that Attorney Rubin provided her with
a copy of this letter. See Notes of Testimony (“N.T.”), 8/30/23, at 68.
Based upon the foregoing, there is simply no support in the certified
record for the gravamen of Mother’s argument. We find no merit in Mother’s
unsupported claim concerning the March 17, 2023 letter. Since no ex parte
communication occurred, no relief is due. See, e.g., Gonzalez, 112 A.3d at
1240 (finding no merit to claim concerning an alleged ex parte communication
when counsel for both parties were included in the challenged exchange).
We now turn to Mother’s second and third claims for relief. While
presented as separate issues, we will address these arguments collectively
since they are substantially similar and pertain to the same procedural rule.
Specifically, Mother asserts that the trial court’s scheduling of the custody
hearings and its determination violated the provisions of Pa.R.C.P. 1915.4(c)
and (d), which proscribe the time for completion of custody trials and
decisions. See Mother’s Brief at 13-20, 23-25. Specifically, Mother contends
that we must vacate the custody orders due to the trial court’s failure to
strictly adhere to these time limits. Id. We do not agree.
Mother’s arguments implicate Rule 1915.4(c)-(e), which provide, as
follows:
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Rule 1915.4. Prompt Disposition of Custody Cases
....
(c) Trial. Trials before a judge shall commence within 90 days of the date the scheduling order is entered. Trials and hearings shall be scheduled to be heard on consecutive days whenever possible but, if not on consecutive days, then the trial or hearing shall be concluded not later than 45 days from commencement.
(d) Prompt Decisions. The judge's decision shall be entered and filed within 15 days of the date upon which the trial is concluded unless, within that time, the court extends the date for such decision by order entered of record showing good cause for the extension. In no event shall an extension delay the entry of the court's decision more than 45 days after the conclusion of trial.
(e) Emergency or Special Relief. Nothing in this rule shall preclude a party from seeking, nor a court from ordering, emergency or interim special relief at any time after the commencement of the action.
Pa.R.C.P. 1915.4(c)-(d).
There seems to be little question that the scheduling of the custody trial
and the trial court’s issuance of its final decision transgressed the time limits
set forth above. Father filed a trial demand on November 9, 2022, and the
trial court issued its scheduling order on December 1, 2022, which initially set
trial for January 17, 2023. Attorney Rubin, however, suffered a “serious fall”
and requested a continuance until February 16, 2023, which was granted.
See Motion for Continuance, 1/17/23, at 1. Thereafter, Attorney Rubin
requested a second continuance due to a “preplanned, prepaid vacation” until
February 28, 2023, which was also granted. Motion for Continuance, 1/31/23,
at 1. Finally, a change in the trial court’s availability led to the third
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postponement. See Order, 2/28/23, at 1. Hearings were ultimately held on
March 14 and 15, 2023, at which point the trial court paused the proceedings
so that Parents could undergo psychological evaluations. See Order, 3/30/23,
at 1-2 (directing Mother to undergo a psychological evaluation); Order,
5/17/23, at 1-2 (same as to Father). The custody trial concluded on August
30, 2023. After filing an order extending its time for the entry of an opinion
pursuant to Rule 1915.4(d), the trial court filed its final custody determination
on October 31, 2023. See Order, 10/9/23, at 1.
Based upon this procedural review, we observe three violations of the
time limits established by Rule 1915.4(c)-(d), namely: (1) the custody trial
was commenced 104 days after the trial court filed its scheduling order as
opposed to ninety days; (2) the custody trial concluded 170 days after it
began, which is beyond the mandated forty-five-day time frame; and (3) the
trial court issued its final determination sixty-three days after trial concluded,
which is beyond the forty-five-day period contemplated by our Rules of Civil
Procedure.5 To the extent Mother contends that these time periods are not in
conformity with Rule 1915.4(c)-(d), she is correct.
5 We note that Mother preserved these violations of Rule 1915.4(c)-(d) in pre-determination filings in the trial court. See Post-Trial Memorandum, 9/8/23, at 10 (alleging violation of Rule 1915.4(c) for allegedly failing to schedule prompt custody trial); Letter, 9/26/23 (inquiring regarding the status of a final custody decision for the purposes of Rule 1915.4(d) compliance).
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As detailed above, however, the certified record concomitantly
demonstrates that these delays were not occasioned by dilatory scheduling or
judicial negligence. Specifically, the delays in bringing this matter to trial were
occasioned by emergency continuance requests submitted by Mother’s own
attorney. Thereafter, the trial court deemed it necessary to pause the
proceedings in order to obtain psychological evaluations of the parties. Then,
the court’s final determination was delayed due to the court’s absence from
chambers for several weeks and the voluminous nature of these proceedings. 6
Mother’s arguments concerning timeliness have overlooked the
provisions of Rule 1915.4(e), which empower the court to grant “emergency
or interim special relief” irrespective of the other provisions of the same Rule.
See Pa.R.C.P. 1915.4(e). Instantly, the circumstances described above
appear to establish reasonable grounds for deviation from the typical time
limits imposed by Rule 1915.4(c) and (d), which included a medical
emergency, factual exigencies requiring out-of-court investigation, and
judicial unavailability. While we cannot condone the lengthy timeline for these
custody proceedings, we are hard-pressed to identify an unjustified violation.
See, e.g., A.C. v. J.B., 1751 EDA 2022, 296 A.3d 589, at *9 (Pa.Super. 2023)
(non-precedential decision) (refusing to fault a trial court for violations of Rule
6 Specifically, the custody trial included transcripts of six full days of testimony, along with 126 exhibits admitted during the various hearings.
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1915.4(d) that were occasioned by a “planned vacation” and an
“extraordinarily” complex case).7
Even assuming, arguendo, that there was no sufficient excuse for the
trial court’s failures to abide by the provisions of Rule 1915.4(c)-(d), Mother
would not be entitled to relief on these claims. Specifically, this Court has
held that since the terms of Rule 1915.4(c)-(d) do not provide an explicit
remedy or sanction, this Court will not vacate a custody order due to a failure
to abide by these timeliness requirements. See Heffley v. Heffley, 977 WDA
2023, 2024 WL 1855126, at *8 (Pa.Super. April 29, 2024) (non-precedential
decision) (declining to vacate order due to violations of Rule 1915.4(c) and
(d) since “these subsections do not provide a remedy or any other sanction if
the trial court does not comply with the time limits”). We have explained:
[T]he Rule serves an instruction to the trial court to issue a decision in a custody matter within the prescribed time, and if a timely decision is not issued, it allows either party to petition the trial court, reminding it that its decision is overdue, and if an opinion is not then issued, to petition . . . for relief.
E.B. v. M.B., 304 A.3d 754, 3 WDA 2023, at *13 (Pa.Super. Aug. 14, 2023)
(non-precedential decision). Thus, Mother is not entitled to relief.
Based upon the foregoing, we observe no abuse of discretion or error of
law in the trial court’s custody orders. Thus, we affirm.
Orders affirmed.
7 The non-precedential decisions of this Court that were published after May 1, 2019, may be cited for their persuasive value. See Pa.R.A.P. 126(b).
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Date: 8/13/2024
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