Gorham, S. v. Gorham, J.

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2016
• Docket: 409 MDA 2015
• Status: Unpublished

Opinion

J-A31017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHANNON GORHAM IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

JOSEPH MATTHEW GORHAM

Appellee No. 409 MDA 2015

Appeal from the Order Entered January 21, 2015 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2387-2013

BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 09, 2016

Shannon Gorham (Mother) appeals from the trial court’s order

requiring her to pay $11,065.15 in expert witness fees in the parties’

underlying custody matter. After careful review, we affirm.

On February 22, 2013, Mother instituted a divorce action against

Joseph Matthew Gorham (Father), seeking among other things, shared legal

and primary physical custody of the parties’ three minor children.

After a pre-trial conference, the trial court ordered Mother to submit to

an evaluation by Father’s expert, Ken Lewis, Ph.D., and for the costs to be

paid by Father. Dispositional Order, 9/6/13. The court also ordered that the

parties’ children submit to an evaluation by Dr. Lewis and that, if Mother

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A31017-15

wished to have Father evaluated, she identify an expert within 30 days and

pay for the costs of that evaluation. Id.

On November 5, 2013, Father filed a petition for contempt/motion to

preclude Mother’s expert witness testimony; two days later Mother filed a

motion to continue the custody trial. On November 14, 2013, the court

entered an order denying Mother’s motion to continue trial and granting

Father’s motion to preclude Mother from presenting any expert testimony.

Specifically, the order precluded Mother from “presenting any testimony

from her expert, Dr. Arnold Scheinvold, Ph.D., or any other expert.” Order,

11/14/13, at (b).1

Prior to commencing the custody trial on November 19, 2013, the

court heard testimony from Dr. Lewis about his qualifications and the fact

that Mother never complied with the court’s prior order requiring her and the

children to submit to an evaluation by Dr. Lewis. During the proceedings,

the court decided to “assess costs at the conclusion [of the matter].” N.T.

Proceedings, 11/19/13, at 39. Moreover, the court heard testimony that

while Mother had identified her own expert and scheduled an initial

consultation with him, the consultation was not scheduled to occur until

November 27th – eight days after the scheduled custody trial. Id. at 40.

On November 20, 2013, the trial court issued an order certifying Dr.

1 The order also required that Dr. Lewis’s report be submitted to Mother’s attorney on or before November 15, 2013. Order, 11/14/13, at (b).

-2- J-A31017-15

Lewis as an expert in custody matters, requiring Mother and Father to follow

all directives and requests of Dr. Lewis, permitting Mother to obtain a report

by Dr. Sheinvold provided that Dr. Sheinvold contact and speak with Dr.

Lewis about the custody evaluation, and directing that Dr. Sheinvold

complete any and all evaluations and interviews, including a complete

report, in advance of trial. Order, 11/20/13, at 1-2. That order also

specifically stated that Mother would be responsible for all of Dr. Sheinvold’s

costs and that Father shall be paid $800/day to travel to Dr. Sheinvold’s

office. Id. at 2. Notably, the court’s order also states that “[t]he cost for

Dr. Lewis shall be fully and completely allocated by this Court at the

conclusion of trial.” Id. (emphasis added).2

A custody trial commenced in November 2013 and continued with

additional testimony and evidence being received by the court on January

15, 2014, March 31, 2014, and April 16, 2014. The parties were ordered to

file post-trial briefs and proposed findings of fact and conclusions of law on

or before May 28, 2014. On June 26, 2014, the court entered its final

custody order that maintained the status quo of a prior custody order which

included shared legal and physical custody, and added the condition that ____________________________________________

2 While Father and the court would have us find that Mother waived any objection to the court’s November 20, 2013 order stating that the cost for Dr. Lewis would be allocated by the court at the conclusion of trial, we disagree with this contention. Because the parties’ custody claims had not been completely resolved at that time, any appeal would have been interlocutory. G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (en banc).

-3- J-A31017-15

Mother’s week of physical custody of the children coincide with her

scheduled physical custody week for her child from a prior marriage, so as to

promote step-sibling bonds. A holiday, birthday and vacation schedule was

also confirmed.

On December 4, 2014, the court entered an order noting that Father,

in compliance with its September 2013 order, had compensated Dr. Lewis

for his services rendered through November 20, 2013, in the amount of

$7,839.25. Order, 12/4/14. The court directed Dr. Lewis to compile his

total bill for services beyond the amount paid by Father and to present his

calculation to the court and parties five days before a scheduled fee hearing.

Id.

On January 12, 2015, the court held the scheduled hearing on the

issue of Dr. Lewis’s expert fees; Dr. Lewis participated in the hearing by

phone. N.T. Hearing, 1/12/15, at 2. Dr. Lewis gave the court and parties a

general outline regarding his bills for services rendered from November 21,

2013 until the conclusion of trial. Dr. Lewis stated that, at the time of the

hearing, the outstanding balance for his fees was $12,790.20. Id. at 7. At

the hearing, Father’s attorney examined Dr. Lewis on the issue of Mother’s

non-cooperative nature with regard to her evaluation prior to trial. Dr. Lewis

also confirmed that up to November 21, 2013, Father had paid $7,839.25 in

services rendered by Dr. Lewis. Id. at 11.

At the conclusion of the hearing and at the direction of the trial judge,

the parties spoke with Dr. Lewis privately to determine the amounts due

-4- J-A31017-15

from Mother and Father based on various dates of services he rendered to

the parties from November 21st until the conclusion of trial. The parties

submitted the relevant bills/paperwork to the court for its final decision. On

January 21, 2015, the court issued an order assessing Mother $11,065.15

and Father $1,725.05 in expert fees.3

In coming to its decision, the court factored in Father’s payments to

Dr. Lewis, totaling $7,839.25, made prior to November 21, 2013.

Ultimately, the court made Mother responsible for 50% of that amount, or

$3,919.63. Then the court added the amount of the remaining services that

were attributed to Mother, which totaled $7,145.52. Adding these two

figures together, the court assessed Mother a total of $11,065.15. To arrive

at Father’s final figure, the court credited him half of his pre-November 20th

payment, or $3,919.63, and subtracted that from the amount of the

remaining services attributed to Father, which totaled $5,644.40, for a final

total of $1,725.05.

Essentially, the trial court accepted Dr. Lewis’ recommendation with

regard to which costs were attributable to Mother and Father and then split

the remaining costs 50/50 between the parties. Mother timely appeals from

that fee order. ____________________________________________

3 Dr. Lewis attributed $1,730.60 to Father for his services and $3,223.02 to Mother for his services. Dr. Lewis left the remaining $7,845.60, which encompassed the expert report and the days of trial, to be allocated between the parties by the court.

-5- J-A31017-15

On appeal, Mother raises the following issues for our consideration:

(1) Whether the trial court’s Order, holding that the Appellant/Mother must pay the Appellee’s expert witness fee “within thirty (30) days from the date of this Order,” is immediately appealable.

(2) Whether the trial court’s January 21, 2015 Order was clearly erroneous and constituted plain error?

(3) Whether the trial court’s January 21, 2015 Order constituted an abuse of discretion?

Before reaching the merits of Mother’s claims, we must first determine

whether this court has jurisdiction to entertain the instant appeal.

Specifically, the question is whether the order from which the appeal is

taken is final for purposes of invoking our appellate jurisdiction. Mother

asserts that the order is final, and, if it is not final, that it is appealable

under Pa.R.A.P. 311 (interlocutory appeals as of right). We find that the

order is final.

Generally, an appeal as of right will only lie from a final order.

Pa.R.A.P. 341(a). A final order is defined as one which “disposes of all

claims and of all parties; or is expressly defined as a final order by statute;

or is entered as a final order pursuant to subdivision (c) of this rule.”

Pa.R.A.P. 341(b).

A custody action may not only be brought as a count in a divorce

action, it may also be initiated in a separate complaint independent of a

divorce action. 23 Pa.C.S. § 3104. The principles established to define

finality for custody orders are the same whether the action is brought as a

-6- J-A31017-15

count in a divorce complaint or in a separate custody complaint. A custody

order will be considered final and appealable only if it is both: 1) entered

after the court has completed its hearings on the merits; and 2) intended by

the court to constitute a complete resolution of the custody claims pending

between the parties. G.B., supra at 721. The term requiring a complete

resolution of pending claims refers to a resolution of the core substantive

issues underlying the parties' custody dispute. Id. at 721 n.11.

Instantly, the June 26, 2014 order was entered after the court

completed its custody hearings and resolved the core substantive issues

underlying the parties’ custody dispute. G.B., supra. Therefore, we find

that the instant order is final and appealable.

Having determined that the order from which Mother appeals is ripe

for our review, we will turn to the merits of her claims. First, we note that

we review a trial court’s allocation of expert fees for an abuse of discretion.

See Pavex, Inc. v. York Fed. Sav. & Loan Ass'n, 716 A.2d 640, 647 (Pa.

Super. 1998).

Pursuant to Pa.R.C.P. 1915.8:

The court may order the child(ren) and/or any party to submit to and fully participate in an evaluation by an appropriate expert or experts. The order, which shall be substantially in the form set forth in Rule 1915.18, may be made upon the court’s own motion, upon the motion of a party with reasonable notice to the person to be examined, or by agreement of the parties. The order shall specify the place, manner, conditions and scope of the examination and the person or persons by whom it shall be made and to whom distributed. In entering an order directing

-7- J-A31017-15

an evaluation pursuant to this rule, the court shall consider all appropriate factors, including the following, if applicable:

(1) the allocation of the costs, including insurance coverage, if any, attendant to the undertaking of the evaluation and preparation of the resultant report and court testimony of any appointed expert[.]

Pa.R.C.P. 1915.8(1) (emphasis added). The Comment to Rule 1915.8

explains that the proposed revisions to the Rule were “intended to afford the

trial court and the parties a more flexible and case-sensitive means of

determining the scope and parameters of a physical and/or mental

examination, including deadlines, costs, underlying data, and access.” See

Explanatory Comment to Rule 1915.8 (2007) (emphasis added).

A review of the record makes it evident that Mother was the driving

force behind the custody trial date being continued several times. She failed

to have the required expert evaluations completed in a timely manner before

the first scheduled trial date, cancelling a scheduled evaluation on the eve of

her appointment with Dr. Lewis. See Letter from Ken Lewis, Ph.D,

10/30/13. Due to eight unsuccessful attempts by Dr. Lewis to schedule

evaluations with Mother and her children or have her complete required

paperwork prior to trial, Dr. Lewis was unable to complete any

comprehensive custody evaluations or interviews. N.T. Proceedings,

11/19/13, at 19-26. Moreover, Mother’s failure to move forward with

requesting that an evaluation of Father be completed by her own expert is

another reason why trial had to be continued.

-8- J-A31017-15

Mother’s non-compliant conduct with regard to the court’s September

2013 order may have, in fact, protracted Dr. Lewis’s services; at a minimum

it led to several trial continuances. Therefore, these actions may have

indirectly increased Dr. Lewis’s expert’s fees. Under such circumstances, it

is reasonable that Mother bear the brunt of those expenses. We find that

the same holds true with the court’s decision to make Mother responsible for

half of Dr. Lewis’s pre-November 20th fees, which had been paid in full by

Father in compliance with the court’s September 6, 2013 order.

Mother does not cite to any relevant statute or case to support her

claim that the court’s fee order is clearly erroneous or an abuse of

discretion. As Rule 1915.8 indicates, the court shall consider all appropriate

factors, which includes the allocation of costs, when ordering an expert

evaluation in custody matters. Pa.R.C.P. 1915.8(a)(1). Additionally, the

court may also consider the fact that a party refused to comply with a Rule

1915.8(a) expert order; in extreme cases it can result in a finding of

contempt. Id. at (c).

Under the circumstances, we do not find that the court abused its

discretion in its allocation of expert fees,4 Pavex, Inc., supra, where

4 Although it may appear that the court’s allocation of costs between Mother and Father is significantly disproportionate, when broken down it is not actually so disparate. Due to the $3,919.63 credit that Father received from his full pre-November 20th payments to Dr. Lewis, Mother’s total fee payments were increased by that same amount. Notwithstanding this (Footnote Continued Next Page)

-9- J-A31017-15

Mother failed to comply with court-ordered deadlines for expert evaluations

which led to the unnecessary protraction of a bitter custody dispute.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/9/2016

_______________________ (Footnote Continued)

reallocation, Mother is only paying at total of $1,500.85 more than Father in fees.

- 10 -