Frierson, T. v. Love, R.

CourtSuperior Court of Pennsylvania
DecidedNovember 8, 2022
Docket538 MDA 2022
StatusUnpublished

This text of Frierson, T. v. Love, R. (Frierson, T. v. Love, R.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frierson, T. v. Love, R., (Pa. Ct. App. 2022).

Opinion

J-A19013-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TENA M. FRIERSON : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : RANDALE L. LOVE : No. 538 MDA 2022

Appeal from the Orders Entered March 8, 2022 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2020 CV 11245 CU

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: NOVEMBER 8, 2022

Tena M. Frierson (“Mother”), pro se, appeals the orders entered on

March 8, 2022, wherein the court disposed of competing petitions for

contempt between Mother and Randale Love (“Father”) with respect to their

son, R.L., born in July of 2020, and awarded Father sole legal and physical

custody of the child.1 We affirm.

____________________________________________ * Former Justice specially assigned to the Superior Court.

1 Mother timely filed a single notice of appeal from two orders entered on March 8, 2022. While the notice of appeal did not identify the substance of either order, Mother attached both orders to the notice, which this Court docketed as a single appeal at 538 MDA 2022. Although Mother’s conjoined appeal presents a procedural anomaly, that is not a basis to quash it in light of Pa.R.A.P. 902, which provides, “Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate[.]” See e.g., Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021)(“[W]here a timely appeal is erroneously filed . . ., Rule 902 permits (Footnote Continued Next Page) J-A19013-22

Mother initiated the underlying custody action pro se on November 12,

2020, and, prolonged by Mother’s conduct and litigiousness, the following

tortuous procedural history ensued.2 During the initial custody conciliation

conference, the parties stipulated to a custody order that awarded Mother

primary physical custody, granted Father periods of partial physical custody,

and established shared legal custody. Approximately six days later, Mother

filed a petition to modify that order. In separate pro se filings on March 24,

2021, and April 12, 2021, Mother issued notice of her proposed relocation to

Valdosta, Georgia. The certified record does not indicate whether Father was

served with either notice, and no counter-affidavit was forthcoming.

Mother obtained counsel for the subsequently-scheduled conciliation

conference, and on May 5, 2021, again by stipulation, the court awarded the

parties shared legal custody, Mother primary physical custody, and Father

partial physical custody on alternating weeks from Thursday at 3:00 p.m. until

Sunday at 9:00 p.m. See Order, 5/5/21, at ¶¶ 1-2. In addition,

____________________________________________

the appellate court, in its discretion, to allow correction of the error, where appropriate.”); Oster v. Serfass Constr. Co., Inc., 2022 WL 3440490 at *2 n.4 (non-precedential decision) (Pa.Super. 2022) (overlooking procedural deficiency caused by appellant filing one notice of appeal from two trial court orders). Here, we opt to exercise our discretion to overlook Mother’s procedural misstep, deem done what should have been done, and treat this matter as a consolidated appeal of the two orders entered on March 8, 2022.

2 The trial court observed, and our review of the certified records confirms, that the parties filed seven emergency petitions for special relief, five petitions for modification of the custody order, and three petitions for contempt. See Trial Court Opinion, 5/5/22, at 1 n.1.

-2- J-A19013-22

notwithstanding Mother’s two previously filed pro se notices of her proposed

relocation, she subsequently stipulated in the May 5, 2021 order that any

parent seeking to relocate may not do so “unless the other parent consents in

writing or the Court approves the proposed relocation,” and the parent seeking

to relocate must follow the procedures set forth in 23 Pa.C.S. § 5337. Id. at

¶ 24.

Less than two weeks after the entry of the stipulated custody order,

Mother filed a petition for contempt, wherein she alleged that Father

“consistently refuses to abide by the court order.” Petition for Contempt,

5/17/21, at ¶ 5. Specifically, Mother alleged that, on May 11, 2021, “I went

to pick up [R.L.], . . . and [Father] refused to bring my baby out.” Id. In

addition, on May 17, 2021, Mother filed pro se a petition for modification of

the May 5, 2021 custody order, wherein she requested sole legal and physical

custody.

Thereafter, as stated by the trial court, Mother filed a Protection from

Abuse (“PFA”) petition against Father on June 1, 2021, “which included the

minor child, and the temporary [PFA] order was issued. Following the hearing,

for which [Father] did not appear, a final [PFA] order was issued on June 23,

2021, which does not include the minor child. That [o]rder expired on

September 23, 2021.” Trial Court Opinion, 5/5/22, at 5 n.3. Meanwhile, on

June 3, 2021, Mother filed yet another pro se petition for modification.

-3- J-A19013-22

A non-record custody conciliation occurred on July 29, 2021, during

which Father was represented, but Mother attended pro se. As best we can

discern from the certified record, Mother revealed during the conciliation that

she had relocated out-of-state with R.L.

No order was issued disposing of Mother’s three outstanding pro se

petitions. However, by interim order entered on August 6, 2021, the trial

court directed that R.L. “shall return to and remain in Dauphin County

immediately.” Interim Order, 8/6/21, at ¶ 1. In addition, the trial court

ordered the parties to continue to follow the terms of the May 5, 2021 custody

order.

On August 31, 2021, Father filed an emergency petition for special relief,

wherein he alleged that Mother moved to Florida with R.L., and that he had

not interacted with R.L. since June 1, 2021. See Emergency Petition, 8/31/21,

at ¶ 16. The trial court scheduled an evidentiary hearing for September 22,

2021, and appointed a guardian ad litem (“GAL”) to represent R.L.’s best

interests during the custody proceedings. On September 23, 2021, the trial

court granted Father’s emergency petition, and repeated its directive that

Mother return R.L. to Dauphin County and abide by the May 5, 2021 custody

order. We quashed as untimely Mother’s appeal from the September 23, 2021

order directing R.L.’s return to Pennsylvania.

On October 13, 2021, Father filed a petition for contempt, wherein he

alleged that Mother was in contempt of the May 5, 2021 custody order by

-4- J-A19013-22

“refusing to return” R.L. to Dauphin County and “refusing to allow” him to

exercise his custodial rights. Petition for Contempt, 10/13/21, at ¶ 21. Father

again alleged that he had not seen R.L. since June 1, 2021. He requested that

the court hold Mother in contempt and grant him “full legal and physical

custody.” Petition for Contempt, 10/13/21, at 4 (unpaginated).

On January 14, 2022, Mother filed a motion to continue the contempt

proceedings due to a COVID-19 related family emergency. The trial court

ultimately granted the motion and continued the hearing to March 3, 2022.

The re-scheduling order noted, “This will be the final continuance granted in

this matter.” Scheduling Order, 1/20/22, at 1. Approximately two weeks

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Bluebook (online)
Frierson, T. v. Love, R., Counsel Stack Legal Research, https://law.counselstack.com/opinion/frierson-t-v-love-r-pasuperct-2022.