J-A05014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.L.S., M.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : B.T.M. : : Appellee : No. 1036 WDA 2016
Appeal from the Order June 17, 2016 In the Court of Common Pleas of Westmoreland County Civil Division at No(s): 158 of 2015-D
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 21, 2017
Appellant, R.L.S., M.D. (“Father”), appeals from the order entered in
the Westmoreland County Court of Common Pleas, which dismissed his
custody complaint and granted sole legal and physical custody of A.R.S.
(“Child”) to B.T.M. (“Sister”). After careful review, we vacate and remand
for dismissal of Sister’s counterclaim and reinstatement of the court’s
February 13, 2015 temporary custody order.
The relevant facts and procedural history of this case are as follows.
Child was born in May 1999, to Mother and Father, who were married at the
time. Mother and Father subsequently divorced, and have had various
different custody arrangements over the years. At some point, Child’s
relationship with Father deteriorated; and Child began to experience
emotional trauma when she interacted with Father. As a result, the court J-A05014-17
issued a custody order on October 1, 2013, which granted Mother sole legal
and primary physical custody. Pursuant to the October 1, 2013 custody
order, Father had partial physical custody of Child, as agreed to between
Child and Father. Father and Child were also to engage in supervised instant
messaging session for one year to achieve reconciliation between Child and
Father. All attempts at reconciliation between Child and Father failed, and
Father has not had contact with Child in years.
In 2014, doctors diagnosed Mother with cancer, and Mother ultimately
died of her illness on January 29, 2015. Sister immediately assumed all
parental responsibilities with respect to Child. On February 1, 2015, Father
filed a custody complaint for sole legal and physical custody of Child. Sister
filed a counterclaim on February 10, 2015, which sought primary legal and
physical custody of Child. After a hearing on February 11, 2015, the court
granted Sister in loco parentis status and awarded Sister temporary sole
legal and physical custody of Child on February 13, 2015. The court
scheduled the custody trial to begin on May 20, 2015.
On February 17, 2015, Father filed an answer and new matter to
Sister’s counterclaim, which challenged the court’s grant of in loco parentis
status to Sister and asked the court to dismiss Sister’s counterclaim for
custody. On April 8, 2015, the court held a status conference, where the
court rescheduled the custody trial to begin on July 28, 2015, to allow the
parties to file briefs on the standing issue. Father then filed multiple
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motions, which resulted in a hearing on May 21, 2015. At the May 21, 2015
hearing, the court: (1) rescheduled the custody trial for August 28, 2015 due
to Father’s work obligations; (2) granted Father’s request for an
enlargement of time to file his brief; (3) ordered Sister to compile a list of
dates she spent with Child from March 2013 onward; (4) approved Child’s
move to West Virginia with Sister with the consent of Father; (5) denied
Father’s request to remove the guardian ad litem; and (6) ordered all parties
to undergo custody evaluations with Dr. O’Hara in a timely fashion. Father
filed his brief concerning the standing issue on June 10, 2015, and Sister
filed her reply on June 29, 2015.
On July 17, 2015, the parties appeared for a hearing after Dr. O’Hara
raised concerns about his ability to perform the custody evaluations.
Specifically, Dr. O’Hara informed the court Father had threatened to file a
HIPAA1 complaint against him due to Father’s concerns with the setting of
the custody evaluation. After a discussion with all parties, Dr. O’Hara
agreed to continue with the case and finish performance of the custody
evaluations. The court kept the scheduled trial date of August 28, 2015, and
ordered Father to cooperate with all of Dr. O’Hara’s requests. On July 20,
____________________________________________
1 HIPAA is the Health Insurance Portability and Accountability Act, at 42 U.S.C.A. § 1320d-1 et seq. “HIPAA ‘provides for monetary fines and various terms of imprisonment for the wrongful disclosure of individually identifiable health information.’” Lykes v. Yates, 77 A.3d 27, 31 (Pa.Super. 2013) (citation omitted).
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2015, Father filed a motion to remove Dr. O’Hara as the custody evaluator.
The court held a hearing on the motion on August 20, 2015, where Father
informed the court that he had filed a HIPAA complaint against Dr. O’Hara.
Dr. O’Hara testified at the hearing that he believed he could be
professionally neutral, but personally wanted to withdraw as custody
evaluator. Sister testified that she did not consent to removal of Dr. O’Hara
as the custody evaluator because she and Child were already halfway
through the evaluation process. The court ultimately granted Father’s
request to remove Dr. O’Hara as the evaluator and continued the custody
trial generally to allow the parties time to agree to a new custody evaluator.
At a hearing on October 8, 2015 to address Father’s motion for
psychological evaluation of Child, the court addressed the status of the
custody evaluations. The court learned the parties had yet to choose a new
custody evaluator. Father also informed the court that he did not believe
custody evaluations were necessary until the court resolved the issue of
Sister’s standing. The court informed Father it could not resolve the
standing issue without completion of the custody evaluations. On October
21, 2015, the court formally removed Dr. O’Hara as the custody evaluator
and appointed Dr. Saar to perform the custody evaluations of the parties.
On November 23, 2015, Father filed a motion for summary judgment, which
again challenged Sister’s standing to pursue custody of Child. Sister filed a
response in opposition on December 14, 2015. On December 17, 2015, the
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court ordered Father to file all necessary releases to allow Dr. Saar to
perform the custody evaluations and stated further delay of the custody
evaluations would result in sanctions.
On January 6, 2016, the court held argument on Father’s motion for
summary judgment. At the conclusion of the hearing, the court took the
matter under advisement; however, the court also informed the parties that
it still expected full participation in the custody evaluations with Dr. Saar. In
response, Father again told the court he did not believe the custody
evaluations were necessary due to the issue of Sister’s standing. On March
4, 2016, the court denied Father’s motion for summary judgment based on
its conclusion that the issue of Sister’s standing was not ripe for
consideration. The court noted Father’s failure to cooperate and participate
in the custody evaluations and stated the insight provided by the custody
evaluations was necessary to determine the standing issue. The March 4,
2016 order informed the parties that failure to complete the custody
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J-A05014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.L.S., M.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : B.T.M. : : Appellee : No. 1036 WDA 2016
Appeal from the Order June 17, 2016 In the Court of Common Pleas of Westmoreland County Civil Division at No(s): 158 of 2015-D
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 21, 2017
Appellant, R.L.S., M.D. (“Father”), appeals from the order entered in
the Westmoreland County Court of Common Pleas, which dismissed his
custody complaint and granted sole legal and physical custody of A.R.S.
(“Child”) to B.T.M. (“Sister”). After careful review, we vacate and remand
for dismissal of Sister’s counterclaim and reinstatement of the court’s
February 13, 2015 temporary custody order.
The relevant facts and procedural history of this case are as follows.
Child was born in May 1999, to Mother and Father, who were married at the
time. Mother and Father subsequently divorced, and have had various
different custody arrangements over the years. At some point, Child’s
relationship with Father deteriorated; and Child began to experience
emotional trauma when she interacted with Father. As a result, the court J-A05014-17
issued a custody order on October 1, 2013, which granted Mother sole legal
and primary physical custody. Pursuant to the October 1, 2013 custody
order, Father had partial physical custody of Child, as agreed to between
Child and Father. Father and Child were also to engage in supervised instant
messaging session for one year to achieve reconciliation between Child and
Father. All attempts at reconciliation between Child and Father failed, and
Father has not had contact with Child in years.
In 2014, doctors diagnosed Mother with cancer, and Mother ultimately
died of her illness on January 29, 2015. Sister immediately assumed all
parental responsibilities with respect to Child. On February 1, 2015, Father
filed a custody complaint for sole legal and physical custody of Child. Sister
filed a counterclaim on February 10, 2015, which sought primary legal and
physical custody of Child. After a hearing on February 11, 2015, the court
granted Sister in loco parentis status and awarded Sister temporary sole
legal and physical custody of Child on February 13, 2015. The court
scheduled the custody trial to begin on May 20, 2015.
On February 17, 2015, Father filed an answer and new matter to
Sister’s counterclaim, which challenged the court’s grant of in loco parentis
status to Sister and asked the court to dismiss Sister’s counterclaim for
custody. On April 8, 2015, the court held a status conference, where the
court rescheduled the custody trial to begin on July 28, 2015, to allow the
parties to file briefs on the standing issue. Father then filed multiple
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motions, which resulted in a hearing on May 21, 2015. At the May 21, 2015
hearing, the court: (1) rescheduled the custody trial for August 28, 2015 due
to Father’s work obligations; (2) granted Father’s request for an
enlargement of time to file his brief; (3) ordered Sister to compile a list of
dates she spent with Child from March 2013 onward; (4) approved Child’s
move to West Virginia with Sister with the consent of Father; (5) denied
Father’s request to remove the guardian ad litem; and (6) ordered all parties
to undergo custody evaluations with Dr. O’Hara in a timely fashion. Father
filed his brief concerning the standing issue on June 10, 2015, and Sister
filed her reply on June 29, 2015.
On July 17, 2015, the parties appeared for a hearing after Dr. O’Hara
raised concerns about his ability to perform the custody evaluations.
Specifically, Dr. O’Hara informed the court Father had threatened to file a
HIPAA1 complaint against him due to Father’s concerns with the setting of
the custody evaluation. After a discussion with all parties, Dr. O’Hara
agreed to continue with the case and finish performance of the custody
evaluations. The court kept the scheduled trial date of August 28, 2015, and
ordered Father to cooperate with all of Dr. O’Hara’s requests. On July 20,
____________________________________________
1 HIPAA is the Health Insurance Portability and Accountability Act, at 42 U.S.C.A. § 1320d-1 et seq. “HIPAA ‘provides for monetary fines and various terms of imprisonment for the wrongful disclosure of individually identifiable health information.’” Lykes v. Yates, 77 A.3d 27, 31 (Pa.Super. 2013) (citation omitted).
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2015, Father filed a motion to remove Dr. O’Hara as the custody evaluator.
The court held a hearing on the motion on August 20, 2015, where Father
informed the court that he had filed a HIPAA complaint against Dr. O’Hara.
Dr. O’Hara testified at the hearing that he believed he could be
professionally neutral, but personally wanted to withdraw as custody
evaluator. Sister testified that she did not consent to removal of Dr. O’Hara
as the custody evaluator because she and Child were already halfway
through the evaluation process. The court ultimately granted Father’s
request to remove Dr. O’Hara as the evaluator and continued the custody
trial generally to allow the parties time to agree to a new custody evaluator.
At a hearing on October 8, 2015 to address Father’s motion for
psychological evaluation of Child, the court addressed the status of the
custody evaluations. The court learned the parties had yet to choose a new
custody evaluator. Father also informed the court that he did not believe
custody evaluations were necessary until the court resolved the issue of
Sister’s standing. The court informed Father it could not resolve the
standing issue without completion of the custody evaluations. On October
21, 2015, the court formally removed Dr. O’Hara as the custody evaluator
and appointed Dr. Saar to perform the custody evaluations of the parties.
On November 23, 2015, Father filed a motion for summary judgment, which
again challenged Sister’s standing to pursue custody of Child. Sister filed a
response in opposition on December 14, 2015. On December 17, 2015, the
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court ordered Father to file all necessary releases to allow Dr. Saar to
perform the custody evaluations and stated further delay of the custody
evaluations would result in sanctions.
On January 6, 2016, the court held argument on Father’s motion for
summary judgment. At the conclusion of the hearing, the court took the
matter under advisement; however, the court also informed the parties that
it still expected full participation in the custody evaluations with Dr. Saar. In
response, Father again told the court he did not believe the custody
evaluations were necessary due to the issue of Sister’s standing. On March
4, 2016, the court denied Father’s motion for summary judgment based on
its conclusion that the issue of Sister’s standing was not ripe for
consideration. The court noted Father’s failure to cooperate and participate
in the custody evaluations and stated the insight provided by the custody
evaluations was necessary to determine the standing issue. The March 4,
2016 order informed the parties that failure to complete the custody
evaluations within ninety days would result in dismissal of the custody
complaint pursuant to Pa.R.C.P. 1915.4(b).
On June 17, 2016, the court held a hearing at Father’s request, where
Father admitted his failure to complete the custody evaluations and asked
the court to enter an appealable order enforcing the March 4, 2016 order.
The court then dismissed Father’s custody complaint, granted Sister’s
counterclaim, and entered a final custody order, which granted Sister sole
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legal and physical custody of Child. In its disposition, the court noted that it
was unable to address the custody factors pursuant to 23 Pa.C.S.A. §
5328(a) due to Father’s failure to complete the custody evaluation. Father
filed a notice of appeal and concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) on July 18, 2016. Because
Father’s Rule 1925(a)(2)(i) statement raised over eighty issues, the court
ordered Father to file an amended Rule 1925(a)(2)(i) statement on July 25,
2016. Father complied on August 5, 2016.
Father raises the following issue for our review:
[WHETHER] THE [TRIAL] COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN DISMISSING FATHER’S COMPLAINT AND AWARDING PHYSICAL AND LEGAL CUSTODY TO [SISTER?]
(Father’s Brief at 8).
Father argues he diligently tried to move the case forward toward the
custody trial and a final custody order. Father submits the court’s failure to
schedule hearings on Father’s numerous motions and emergency petitions
thwarted his efforts to proceed with the case. Father maintains Dr. O’Hara’s
actions and the court’s decision to continue the custody trial were
responsible for the delay in the case. Father further challenges the court’s
award of sole legal and physical custody of Child to Sister. Father asserts
dismissal of Father’s complaint pursuant to Rule 1915.4(b) required
dismissal of Sister’s counterclaim, and Sister lacked standing to pursue
custody of Child. Father finally claims the court erred when it entered a final
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custody order without the completion of a full best interest of the child
analysis. Father concludes the court improperly dismissed his custody
complaint and granted Sister’s counterclaim through entry of a final custody
order, and this Court should vacate and remand for a full custody trial. We
disagree with Father’s assertion that the court improperly dismissed his
custody complaint, but we are constrained to agree that the court
improperly granted Sister’s counterclaim through entry of a final custody
order.
“The correctness of [a] trial court’s application of a Rule of Civil
Procedure raises a pure question of law. As with all questions of law, our
standard of review is de novo and our scope of review is plenary.” Harrell
v. Pecynski, 11 A.3d 1000, 1003 (Pa.Super. 2011) (internal citations
omitted). Pennsylvania Rule of Civil Procedure 1915.4(b) provides in
relevant part as follows:
Rule 1915.4. Prompt Disposition of Custody Cases
* * *
(b) Listing Trials Before the Court. Depending upon the procedure in the judicial district, within 180 days of the filing of the complaint either the court shall automatically enter an order scheduling a trial before a judge or a party shall file a praecipe, motion or request for trial, except as otherwise provided in this subdivision. If it is not the practice of the court to automatically schedule trials and neither party files a praecipe, motion or request for trial within 180 days of filing of the pleading, the court shall sua sponte or on motion of a party, dismiss the matter unless a party has been granted an extension for good cause shown, or the court finds that dismissal is not in the best
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interests of the child. The extension shall not exceed 60 days beyond the 180 day limit. A further reasonable extension may be granted by the court upon agreement of the parties or when the court finds, on the record, compelling circumstances for further reasonable extension. If an extension is granted, and thereafter, neither party files a praecipe, motion or request for trial within the time period allowed by the extension, the court shall, sua sponte or on the motion of a party, dismiss the matter unless the court finds the dismissal is not in the best interests of the child. A motion to dismiss, pursuant to this rule, shall be filed and served upon the opposing party. The opposing party shall have 20 days from the date of service to file an objection. If no objection is filed, the court shall dismiss the case. Prior to a sua sponte dismissal, the court shall notify the parties of an intent to dismiss the case unless an objection is filed within 20 days of the date of the notice.
Pa.R.C.P. 1915.4(b). Rule 1915.4(b) “unambiguously requires that a trial
court dismiss an action if trial has not been scheduled within 180 days of
filing of the pleading or if the moving party has not been granted an
extension for good cause shown.” Harrell, supra at 1005.
Instantly, Father filed his custody petition on February 1, 2015, and
Sister filed a counterclaim for sole legal and physical custody on February
10, 2015. After a hearing, the court granted Sister in loco parentis status
and temporarily awarded Sister sole legal and physical custody of Child. The
court scheduled the custody trial for May 20, 2015; however, in April 2015,
the court rescheduled trial for July 28, 2015, after Father raised a challenge
to Sister’s standing, which required briefing by the parties. On May 21,
2015, the court again rescheduled trial for August 28, 2015, after Father
informed the court that work obligations interfered with the July 2015 trial
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date. That same day, the court ordered the parties to undergo custody
evaluations, which were necessary for disposition of Father’s challenge to
Sister’s standing and for determination of the best interests of Child. The
court order required completion of the custody evaluations in time for the
August 28, 2015 custody trial.
In July 2015, issues arose between Father and the custody evaluator,
Dr. O’Hara, after Father accused Dr. O’Hara of HIPAA violations. At a
hearing on July 17, 2015, the parties discussed the issue and Dr. O’Hara
agreed to finish performance of the custody evaluations. The court kept the
scheduled trial date of August 28, 2015, and ordered Father to cooperate
with all of Dr. O’Hara’s requests. Nevertheless, Father filed a motion to
remove Dr. O’Hara as the custody evaluator on July 20, 2015. On August
20, 2015, the court granted Father’s request for removal when the court
learned Father had filed a HIPAA complaint against Dr. O’Hara. Because
custody evaluations were necessary for the court’s disposition of the case,
the court had no choice but to continue the custody trial generally for
completion of the custody evaluations.
On October 21, 2015, the court appointed Dr. Saar as the custody
evaluator by agreement of the parties. The court again ordered the parties
to complete the custody evaluations in a timely fashion. Nevertheless,
Father failed to comply with the custody evaluation order, which prevented
any progress toward scheduling of the custody trial. On November 23,
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2015, Father filed a motion for summary judgment, which again raised a
challenge to Sister’s standing even though Father had made no progress
with his custody evaluation. Despite Father’s motion, the court repeatedly
informed Father he must comply with the custody evaluations to move the
case forward to trial. Father, however, remained uncooperative and
prevented any progress toward scheduling of the custody trial due to his
assertion that the custody evaluations were unnecessary.
On March 4, 2016, the court denied Father’s motion for summary
judgment based on its determination that it could not decide the standing
issue without completion of the custody evaluations. The court’s order
directed Father to complete the custody evaluations within ninety (90) days
or face dismissal of the custody complaint pursuant to Rule 1915.4(b). After
the court’s entry of the March 4, 2016, Father failed to make any progress
with his custody evaluation and did not ask the court for an extension to
complete the custody evaluations. Instead, Father requested a hearing,
where he admitted his failure to comply with the March 4, 2016 order and
asked the court to enter an appealable order. The court then dismissed
Father’s complaint and granted Sister’s counterclaim through the entry of a
final custody order, which gave Sister sole physical and legal custody of
Child on June 17, 2016.
Due to Father’s actions, five hundred and two (502) days passed
between the filing of his custody complaint and the court’s dismissal of the
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complaint. During this time, the court allowed the case to continue in hopes
of resolving the custody dispute to achieve stability for Child. Father,
however, thwarted all of the court’s attempts to achieve full disposition of
the custody issues. Significantly, at no time after August 20, 2015, did the
parties request a date for the custody trial, so the case remained generally
continued due to Father’s ongoing noncompliance with the court-ordered
custody evaluations. Father’s lack of compliance with the custody evaluation
made full disposition of the custody issues impossible and effectively stalled
the case. Thus, in light of Father’s continuous dilatory conduct and lack of
request for an extension, the court was authorized to dismiss Father’s
custody complaint pursuant to Rule 1915.4(b). See Pa.R.C.P. 1915.4(b).
Nevertheless, the court erred when it effectively granted Sister’s
counterclaim through entry of a final custody order. Instead, the court
should have dismissed the entire custody matter, including Sister’s
counterclaim. See Harrell, supra. Thus, we are constrained to vacate and
remand for complete dismissal of the custody action and reinstatement of
the court’s February 13, 2015 interim custody order.2 Accordingly, we
vacate and remand with instructions.
Order vacated, case remanded with instructions. Jurisdiction is
relinquished. ____________________________________________
2 The February 13, 2015 interim custody order gave Sister temporary sole legal and physical custody of Child, who is now almost eighteen years old.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/21/2017
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