Miorelli, K. v. Thompson, T.

• Court: Superior Court of Pennsylvania
• Decided: March 25, 2022
• Docket: 1002 WDA 2021
• Status: Unpublished

Opinion

J-S03016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATELYN MIORELLI : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : TODD THOMPSON : No. 1002 WDA 2021

Appeal from the Order Entered August 20, 2021 In the Court of Common Pleas of Allegheny County Civil Division at No(s): No. FD-20-007198

BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SULLIVAN, J.: FILED: MARCH 25, 2022

Katelyn Miorelli (“Mother”) appeals the order denying her request to

relocate with the parties’ daughter, E.M.1 We remand for a supplemental

Pa.R.A.P. 1925(a) opinion.

Given our disposition, a detailed recitation of the facts and procedural

history is unnecessary. E.M. was born in November 2013, to Mother and Todd

Thompson (“Father”), who never married. The parties cooperated with each

other regarding custody of E.M. through December 3, 2020, when the trial

court entered an interim custody order awarding the parties shared legal and

physical custody of E.M.

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* Retired Senior Judge assigned to the Superior Court.

1 We use the parties’ full names in the caption as neither party has requested the use of their initials. See Pa.R.A.P. 904(b)(2); Pa.R.A.P. 907(a). J-S03016-22

On December 7, 2020, Mother, who had recently married Stepfather,

filed a notice of proposed relocation to Colorado, where Stepfather was

residing, and requested to relocate with E.M. Father objected to E.M.’s

relocation. On February 2, 2021, the parties participated in a relocation

conciliation. On July 14, 2021, the trial court conducted an evidentiary

hearing at which Mother and Father testified. Neither party presented

additional witnesses. On August 20, 2021, the trial court entered an order

denying Mother’s request to relocate with E.M. The order also provided that,

“subsequent to this short order, a detailed analysis of the determinative

factors, including a detailed custody schedule, will be issued.” Order, 8/20/21,

at ¶ 4 (unnecessary capitalization omitted).

On August 25, 2021, Mother filed a timely notice of appeal.2 However,

she failed to file contemporaneously a concise statement of errors complained

of on appeal. See Pa.R.A.P. 1925(a)(2)(i) (providing that, in children’s fast

track appeals, a Rule 1925(b) statement “shall be filed and served with the

notice of appeal”); see also Pa.R.A.P. 905(a)(2) (same). Accordingly, this

2 On that same date, Mother filed a motion for reconsideration. Although the record reflects that the trial court considered that motion, it did not expressly or unequivocally grant reconsideration. See Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 520 (Pa. Super. 1999) (explaining that the trial court must state expressly and unequivocally that reconsideration is granted). Accordingly, as the trial court did not expressly grant Mother’s motion for reconsideration, the filing of that motion did not render inoperative the notice of appeal. See Pa.R.A.P. 1701(b)(3)(ii) (stating that a timely order granting reconsideration shall render inoperative any notice of appeal).

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Court issued an order directing Mother to comply with the following no later

than September 13, 2021: (1) file the Rule 1925(b) statement in the trial

court; (2) serve the Rule 1925(b) statement on the trial judge and the other

party; and (3) file a copy of the Rule 1925(b) statement with the Prothonotary

of this Court.

On September 7, 2021, the trial court issued a parenting plan order of

court which was accompanied by a memorandum that set forth its analysis of

the 23 Pa.C.S.A. § 5337(h) relocation factors and the 23 Pa.C.S.A. § 5328(a)

custody factors.3

On September 15, 2021, Mother filed a docketing statement in this

Court to which she attached a Rule 1925(b) statement. The Rule 1925(b)

statement bears a date stamp which indicates that it was filed in the trial court

on September 13, 2021, as well as a certificate of service indicating that it

was served on the trial judge and Father’s counsel on September 13, 2021.

The Rule 1925(b) statement raises several claims of error, including a claim

that the trial court erred when it did not conduct an in camera interview with

E.M. prior to issuing its order denying the relocation request. Concise

Statement, 9/11/21 at 4 (further indicating that, pursuant to Mother’s request

3 Mother filed her notice of appeal prior to the September 7, 2021 entry of the parenting plan order of court. Nevertheless, we conclude that the trial court’s August 20, 2021 order constitutes a final and appealable order because it disposed of all claims and all parties by denying Mother’s request to relocate with E.M. See Pa.R.A.P. 341(b)(1) (a final order is any order that disposes of all claims and of all parties).

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at the February 2, 2021 relocation conciliation, the trial court agreed to

conduct an in camera interview E.M.).

On October 4, 2021, the trial court issued an opinion pursuant to Rule

1925(a). In its opinion, the trial court did not identify or discuss Mother’s

claim of error regarding the trial court’s failure to conduct an in camera

interview with E.M. See Trial Court Opinion, 10/4/21, at 6-19. Mother faults

the trial court for not addressing the in camera issue in its Rule 1925(a)

opinion.

Our review of the certified record reveals that the record includes two

versions of Mother’s Rule 1925(b) statement. Each statement bears a date

stamp and a certificate of service indicating service on the trial court judge

and Father on September 13, 2021, in compliance with this Court’s directives.

However, whereas the Rule 1925(b) statement filed with this Court includes

Mother’s in camera claim of error, the other version of the Rule 1925(b)

statement in the record does not include the issue.

Given that the certified record reflects that the Rule 1925(b) statement

filed with this Court—which includes the in camera claim of error—bears a

certificate of service on the trial court judge, we must conclude that it was, in

fact, served on the trial court judge. Accordingly, because Mother’s in camera

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claim of error may be dispositive on appeal,4 we remand this matter for the

trial court to prepare a supplemental Rule 1925(a) opinion within 21 days of

this filing. The supplemental Rule 1925(a) opinion shall explain: (1) whether

Mother, through counsel, requested during the judicial conciliation conference

on February 2, 2021, and/or on subsequent occasions up to and including the

July 14, 2021 relocation hearing, that E.M. be interviewed by the court in

camera; and (2) why the in camera interview never took place. Further, we

direct the Prothonotary’s Office to include with this Memorandum the Rule

1925(b) statement, along with the certificate of service accompanying it, that

Mother attached to the docketing statement filed with this Court on September

15, 2021.

Case remanded for proceedings consistent with this Memorandum.

Jurisdiction retained.

4See 23 Pa.C.S. § 5337(h)(4), § 5328(a)(7) (providing that the trial court must consider the child’s preference regarding relocation and/or custody and weigh it in light of the child’s age and maturity).

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