E.R. v. J.N.B.

129 A.3d 521, 2015 Pa. Super. 260, 2015 Pa. Super. LEXIS 817
Superior Court of Pennsylvania·Decided December 14, 2015·Published·Cited by 66 cases

Opinion

OPINION BY

STRASSBURGER, J.:

E.R. (Father) appéals from the custody order entered December 4, 2013, wherein the trial court granted J.N.B. (Mother) primary physical custody of the parties’ child, X.R. (Child). In addition, Father challenges the June 25, 2013 order that precluded Joseph P. Maher, Esquire from representing him in the custody matter. After review, we affirm.

Mother and Father are .the natural parents of Child, who was bprn out of wedlock on July 12, 2010. Father commenced the underlying.custody action by filing a complaint on April 12, 2011. Thereafter, on May 9, 2011, the parties agreed to a custodial arrangement providing for shared legal custody, of Child. Through this arrangem.ent,. Mother was entitled to primary physical custody,, and Father was granted partial custody on alternate weekends, with one overnight visit during the week following his custodial weekend.

: On June 27, 2011, Father filed a petition for contempt and modification, which was later withdrawn. On February 12, 2012, Father filed a second petition for contempt and modification. On March 5, 2012, following a custody conference, the parties agreed to an interim order that expanded Father’s partial physical custody period to Sunday evening through Tuesday evening of each week. .Those terms were, adopted as a final order by the parties on August 1, 2012.

[523] On April 14, 2013, Father again petitioned for modification, seeking equal physical custody of Child. On May 14, 2013, Attorney Maher entered his appearance on behalf of. Father. On June 25, 2013, a status conference was held, at which time Father withdrew his petition for modification. : Additionally, on that date, Mother petitioned for the disqualification of Attorney Maher on the basis that he had represented Mother on two prior unrelated matters, and thus possessed confidential knowledge of her finances and personal life relevant to the parties’ ongoing custody and.support disputes. By order filed on June 27, 2013, the trial court granted Mother’s petition for disqualification and precluded Attorney Maher , from representing Father.1

Following the June 25, 2013, status conference, Mother filed a petition for modification. Father responded by filing an emergency petition for special relief on July 15, 2013. On July 16, 2013, Mother filed a petition for contempt alleging that Attorney Maher had violated the court’s June 27, 2013 order by filing motions on Father’s behalf and contacting Mother’s counsel with a proposed settlement agreement. On August 28, 2013, Mother filed an amended petition for contempt. Attorney Maher filed a response. -

On September 6, 2013, a hearing was held on Mother’s contempt petitions. On September 18, 2013, the case proceeded to a pretrial conference on Mother’s petition for modification. Subsequently, by order dated- September 26, 2013, the court directed Mother and Father to submit to psychological evaluations.2 By order filed September 27>, 2013, the trial court held Attorney Maher in contempt and ordered him'to pay a fine'of $250, plus attorney’s fees.

The parties’ custody trial commenced on December 3, 2013, Father represented himself, while Mother was represented by counsel. At trial, the lower court heard testimohy from Mother, Father, and Father’s mother. On December 4, 2013, the court entered an order granting primary physical custody ’ to Mother' and partial physical custody to Father.

On January 3, .2014, Father, through Attorney-Maher, timely filed a notice of appeal to this Court. Additionally, in accordance with Pa.R.A.P. 1925(a)(2), Father, again through Attorney Maher, filed a concise statement of errors complained of on appeal.

On February 19, 2014, this Court issued a rule to show cause why the instant appeal should not be quashed due to Attorney Maher’s continued representation of Father in defiance of the trial court’s June 27, 2013 order. On March 3, 2014, Father filed a response. By per curiam order dated March 5, 2014, the rulé to show cause was discharged, and the issue of the propriety of the’ instant appeal was deferred to the merits panel for disposition.3

[524] In his brief on appeal, Father raises the following issues for our'review.

A. Whether the trial court committed an error of law- and/or an abuse of discretion in precluding [Father’s] counsel from representing him in..this matter due to an alleged conflict pursuant to Rule of Professional Conduct 1.9, having ■represented [Mother] in a [PFA action] against her father and in an unemployment compensation matter, both final, when those matters and the present matter are not substantially related, the subject matter, .of those matters and the present matter were in the sphere of general knowledge including that of [Father], there had been a waiver by [Mother] of this alleged conflict by the fact that she did not,raise said issue in prior proceedings before the trial court thus waiving same,, and her presentation of her initial petition to preclude was filed in violation of [Lehigh County Local Rules of Civil Procedure] 208.8(b)?
B. Whether the trial court committed an error of law and/or an abuse of discretion by limiting [Father’s] partial physical custody of the minor child .. ■. in its December 4, 2013, order to supervised physical custody at [Father’s] sole expense, simply because he has been charged in the State of New York with endangering the welfare of a child, but not found guilty of such offense, which he denies, in violation of his constitutional right to be presumed innocent until proven guilty and by the trial court assuming [Mother’s] version of that incident is true when the official police .record and other uncontracted [sic] facts prove several of [Mother’s] statements regarding that incident as false, e.g, the child left the vehicle with [Father] upon arrival in [New York City] and never returned to it and the police allege that the subject hand gun was in “plain view”?
C.Whether-the trial court committed an error of law and/or an abuse of discretion in failing to have the trial court’s staff, particularly, the clerk of judicial records — civil division, cease and desist from its practice of having all Lehigh County mail, [including] particularly the trial court’s final orders, including the order sub judice, sent to Reading, Pennsylvania for subsequent ré-mailing, such operating as a violation of Pa.R.A.P. 108(a), by such re-mailing creating a clear and dinstnct disadvantgage [sic ] to [Father] and all other similarly situated Lehigh County litigants adversely affected by the aforesaid re[-]mailing creating a delay in their receipt and ability to-response [sic ] to said order?

Father’s Brief at 4-5 (unnecessary capitalization and suggested answers omitted).

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E.R. v. J.N.B., 129 A.3d 521, 2015 Pa. Super. 260, 2015 Pa. Super. LEXIS 817 (Pa. Ct. App. 2015).

129 A.3d 521 (E.R. v. J.N.B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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