J.P. v. J.S.

Superior Court of Pennsylvania

J.P. v. J.S.

DecidedJuly 9, 2019

Docket460 EDA 2019

StatusPublished

This text of J.P. v. J.S. (J.P. v. J.S.) 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

J.P. v. J.S., (Pa. Ct. App. 2019).

Pincite

Opinion

J-S32034-19

2019 PA Super 211

J.P. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : J.S. : : Appellant : No. 460 EDA 2019

Appeal from the Order Entered January 2, 2019 In the Court of Common Pleas of Philadelphia County Family Court at No(s): 0C121184

BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

OPINION BY MURRAY, J.: FILED JULY 09, 2019

J.S. (Mother), in her words, “appeals to the Superior Court of

Pennsylvania from the Custody Order entered in this matter on January 2,

2019, motion to reconsider denied with amendments January 29, 2019.”

Mother’s Notice of Appeal, 2/14/19. After careful review of the convoluted

procedural history preceding this appeal, as well as prevailing legal authority,

we quash.

Instantly, Mother challenges the trial court’s award of primary physical

custody of the parties’ eight-year old daughter (Child) to J.P. (Father), and

the court’s attendant decision permitting Father to relocate with Child from

Philadelphia to Montgomery County.

Mother filed a timely pro se petition for reconsideration on January 7,

2019, in which Mother alleged that the trial court erred in the “evaluation of

the evidence presented at the hearing. Mother requested that [the trial court] J-S32034-19

restore shared physical custody and order that the Minor Child continue to

attend school in Philadelphia.” Trial Court Opinion, 3/13/19, at 5.

Mother subsequently retained counsel, who a week later, on January 14,

2019, entered her appearance and filed a motion to modify custody on

Mother’s behalf.1 On January 29, 2019, the trial court entered an order

denying reconsideration, and the corresponding docket entry reads:

“RECONSIDERATION DENIED. NOTICE GIVEN UNDER RULE 236. MOTHER’S

PETITION FOR RECONSIDERATION DENIED WITHOUT A HEARING. SEE

ORDER FOR DETAILS.” The trial court’s order denying reconsideration reads,

in part:

MOTHER SEEKS RECONSIDERATION OF OUR ORDER OF JANUARY 2, 2019 GRANTING [FATHER’S] REQUEST TO RELOCAT[E] AND GRANTING FATHER PRIMARY PHYSICAL CUSTODY. THIS PETITION FOR RECONSIDERATION WAS FILED WITHOUT THE ASSISTANCE OF COUNSEL, WHICH IS MOTHER’S PEROGATIVE.

UPON EXAMINATION OF MOTHER’S REASONS FOR FILING THE PETITION AND CONSIDERATION OF MOTHER’S ARGUMENTS FOR RECONSIDERATION, WE DENY, WITHOUT A HEARING, THE PETITION, BUT AMEND OUR OPINION TO CORRECT AND CLARIFY THE RECORD FOR THE FOLLOWING REASONS: ...

Order, 1/29/19, at 1 (emphasis added).

____________________________________________

1 Father appeared pro se before the trial court and continues to represent himself on appeal; Father has articulated, inter alia, that he does “not have sufficient funds to hire counsel to file a brief on my behalf. Please do not consider my failure to file a [counseled] brief as any concession or agreement that the appeal has any merit.” Father’s “Letter Brief” at 1.

-2- J-S32034-19

The trial court order then listed four paragraphs explaining: 1)

regardless of Mother’s living situation, “both parents perform their parental

duties and attend to the daily needs of minor child”; 2) the court’s choice of

school enrollment “better suits” Child’s “needs at this time”; 3) the court

erroneously found that Mother missed Child’s dance recital when “it was

Father who missed a dance recital,” but “we nevertheless conclude that Father

is more likely to ensure the minor child will attend extracurricular activities

that she is involved in”; and 4) despite Father working two jobs, Child’s “best

interests would be served by granting primary custody to Father during the

school year.” Id. at 1-2.

The order also specified that it “did not resolve Mother’s petition to

modify custody filed on January 14, 2019, which is scheduled for a custody

master’s event on February 7, 2019, at 2:00 P.M., which will proceed as

scheduled.” Id. at 2. The docket reflects “EVENT CANCELLED” on February

7, 2019. On February 14, 2019, Mother filed this appeal. The trial court

issued an opinion on March 13, 2019.

We must address the procedural posture leading up to this appeal. The

January 2, 2019 order awarding primary physical custody to Father and

permitting him to relocate from Philadelphia to Montgomery County was a final

order because a custody order is final “after the trial court has completed its

hearings on the merits and the resultant order resolves the pending custody

claims between the parties.” G.B. v. M.M.B., 670 A.2d 714, 715 (Pa. Super.

1996) (en banc). Judge Beck, writing for the en banc panel, explained:

-3- J-S32034-19

Based on the case law . . . and the important policy concerns implicated in custody proceedings, we hold that 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. We conclude that this holding will protect the child from the protraction of custody litigation through repetitive appeals while still allowing prompt and comprehensive review of custody determinations. It will also support judicial economy and efficiency and uphold the integrity of the trial court’s process in deciding custody matters. On the one hand, to permit piecemeal appeals subjects the child to the uncertainties of ongoing litigation. A custody proceeding, whether on the trial or the appellate level, threatens a child’s stability. On the other hand, a custody decision once finally made must be subject to review. Drawing a bright line by which finality may be determined will encourage judicial economy and efficiency by making it clear both to litigants and to trial courts when the appellate process may properly be invoked. Our holding also serves to uphold the integrity of the trial process by not interfering with the trial court’s efforts to craft a final decision and by not permitting premature challenges to those efforts. In striking a balance between postponing and granting an appeal, we have attempted to serve primarily the best interests of the child.

Id. at 720–21 (footnotes omitted).

The finality of the January 2, 2019 order is reinforced by Mother’s

January 7, 2019 pro se petition for reconsideration and her January 14, 2019

counseled petition to modify custody. Accordingly, Mother’s appeal — filed on

February 14, 2019 — was untimely as to the January 2, 2019 order because

it was not taken “within 30 days after the entry of the order from which the

appeal was taken.” Pa.R.A.P. 903(a).

With regard to the January 29, 2019 order, docketed as

“RECONSIDERATION DENIED,” Mother’s appeal was timely. However, a

denial from a motion for reconsideration is not final or otherwise appealable.

-4- J-S32034-19

See Valentine v. Wroten, 580 A.2d 757 (Pa. Super. 1990). In that case,

we stated:

Our court has repeatedly held that appeals filed from orders denying reconsideration are improper and untimely. The appeal in this case should have been filed within thirty days from the [original custody] order or, reconsideration should have expressly been granted within thirty days of that order. Since the untimely filing of the appeal goes to the jurisdiction of this court, we have no choice but to quash the appeal.

Id. at 758 (citations omitted).

More recently, this Court explained the proper procedure by which

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