W.B. v. K.S. ( 2017 )

J-S19006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
W.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
K.S. :
:
Appellee : No. 1782 MDA 2016
Appeal from the Order Entered September 28, 2016
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2011-FC-41396,
2011-FC-41715
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 19, 2017
Appellant, W.B. (“Father”), appeals pro se from the order entered in
the Lackawanna County Court of Common Pleas, which denied Father’s
petition for contempt of K.S. (“Mother”) for failing to comply with the
agreed-upon custody order of August 18, 2016, which addressed the parties’
custody of their minor child, A.J.B. (“Child”). We affirm.
The relevant facts and procedural history of this case are as follows.
The parties married in 2006, and Child was born of the marriage. The
parties divorced in 2011. Father filed a petition for custody of Child on
October 21, 2011. On December 21, 2012, the court granted the parties
shared legal custody of Child and gave Mother primary physical custody of
Child. On May 10, 2016, Father filed a petition to modify custody of Child.
_____________________________
*Former Justice specially assigned to the Superior Court.
J-S19006-17
The court conducted a hearing on Father’s petition on August 10, 2016.
During the hearing, the parties reached a settlement agreement concerning
their custody dispute, and the court read the terms of the agreement into
the record. The court entered a custody order on August 18, 2016, that
reflected the terms of the parties’ settlement agreement. On August 29,
2016, Father filed a contempt petition against Mother for failing to comply
with the August 18th custody order. After a hearing on September 19, 2016,
the court denied Father’s petition on September 28, 2016. On October 27,
2016, Father timely filed a pro se notice of appeal and a contemporaneous
statement of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i).
As a preliminary matter, we recognize:
[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101. This Court may
quash or dismiss an appeal if the appellant fails to conform
to the requirements set forth in the Pennsylvania Rules of
Appellate Procedure. Id.; Commonwealth v. Lyons, 833
A.2d 245 (Pa.Super. 2003)[, appeal denied, 583 Pa. 695,
879 A.2d 782 (2005)]. Although this Court is willing to
liberally construe materials filed by a pro se litigant, pro se
status confers no special benefit upon the appellant. Id.
at 252. To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be
his undoing. Commonwealth v. Rivera, 685 A.2d 1011
([Pa.Super.] 1996).
In re Ullman, 995 A.2d 1207, 1211-12 (Pa.Super. 2010), appeal denied,
610 Pa. 600, 20 A.3d 489 (2011) (quoting Commonwealth v. Adams, 882
A.2d 496, 497-98 (Pa.Super. 2005)). The applicable rules of appellate
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procedure mandate that an appellant’s brief shall consist of the following
matters, separately and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence,
if applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief
sought.
(10) The opinions and pleadings specified in
Subdivisions (b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
errors complained of on appeal, filed with the trial
court pursuant to Rule 1925(b), or an averment
that no order requiring a statement of errors
complained of on appeal pursuant to [Rule]
1925(b) was entered.
Pa.R.A.P. 2111(a). Further,
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as
the circumstances of the particular case will admit,
otherwise they may be suppressed, and, if the defects are
in the brief or reproduced record of the appellant and are
substantial, the appeal or other matter may be quashed or
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dismissed.
Pa.R.A.P. 2101 (emphasis added). See also Pa.R.A.P. 2114-2119
(addressing specific requirements of each subsection of appellate brief).
Noncompliance with Rule 2116 is particularly grievous because the
statement of questions involved defines specific issues for review.
Commonwealth v. Maris, 629 A.2d 1014 (Pa.Super. 1993). See also
Pa.R.A.P. 2116(a) (explaining statement of questions involved must state
concisely issues to be resolved). Moreover,
The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of
each part—in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by
such discussion and citation of authorities as are deemed
pertinent.
Pa.R.A.P. 2119(a) (emphasis added). See also Commonwealth v. Knox,
50 A.3d 732 (Pa.Super. 2012), appeal denied, 620 Pa. 721, 69 A.3d 601
(2013) (reiterating failure to cite to legal authority to support argument
results in waiver).
Importantly, where an appellant fails to raise or develop his issues on
appeal properly, or where his brief is wholly inadequate to present specific
issues for review, this Court will not consider the merits of the claims raised
on appeal. Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000) (holding
appellant waived claim where she failed to set forth adequate argument
concerning her claim on appeal; argument lacked meaningful substance and
consisted of mere conclusory statements; appellant failed to explain cogently
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or even tenuously assert how trial court abused its discretion or made error
of law). See also Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006)
(explaining arguments must adhere to rules of appellate procedure and
arguments which are not appropriately developed are waived on appeal;
arguments not appropriately developed include those where party has failed
to cite any authority in support of contention); Estate of Haiko v.
McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant must support
each question raised by discussion and analysis of pertinent authority;
absent reasoned discussion of law in appellate brief, this Court’s ability to
provide review is hampered, necessitating waiver on appeal).
Instantly, the defects in Father’s brief are substantial. Father’s brief
lacks a statement of jurisdiction, the order in question, the relevant standard
and scope of review, a statement of questions presented, a thorough
statement of the case, a comprehensible summary of the argument, and
legal argument sufficient for appellate review. See Pa.R.A.P. 2111(a),
Pa.R.A.P. 2116(a), Pa.R.A.P. 2119(a), supra. Father also failed to attach to
his brief a copy of his Rule 1925(a)(2)(i) statement. See Pa.R.A.P. 2111(a),
supra. Further, Father attempts to raise several claims in his brief, but he
fails to appropriately separate and label his claims. See Pa.R.A.P. 2119(a),
supra. Father’s gross deviation from our procedural rules governing
appellate briefs precludes meaningful review and constitutes waiver of his
issue(s) for appellate review. See Lackner, supra; Estate of Haiko;
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Butler, supra.
Father also tries to challenge on this appeal the merits of the
underlying custody order of August 18, 2016. In Father’s contempt petition,
however, he sought to enforce that order, claiming Mother had violated it.
Nevertheless, Father did not present an actual challenge to the custody
order itself that would put Mother or the court on notice that Father wanted
to modify custody.1 The order informing the parties of the contempt hearing
likewise did not advise the parties that custody would be a disputed issue
during the contempt proceedings. At the hearing on his contempt petition,
Father argued for the first time that he had felt “coerced” into agreeing to
the August 18th order, by court intimidation. As a result of the contempt
hearing, the court denied Father’s petition for contempt. The court was
correct to leave the underlying custody order in place when it decided
Father’s contempt petition. See generally Langendorfer v. Spearman,
797 A.2d 303 (Pa.Super. 2002) (explaining parent’s due process rights are
violated when court modifies custody as sanction against parent following
contempt proceedings concerning parent’s failure to comply with underlying
custody order where parent had no notice custody would be at issue in
____________________________________________
1
In the “Wherefore” clause of Father’s August 29, 2016 written contempt
petition, he mentioned he wanted “sole custody” as a remedy, without
elaboration. On the day of the hearing, September 19, 2016, Father filed a
typed brief in support of his contempt petition and, for the first time,
requested custody modification as a “sanction” for Mother’s alleged
contempt.
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contempt proceedings; court may not permanently modify custody order at
contempt hearing, without proper notice). Therefore, we conclude any
complaints Father might have about the August 18th custody order are not
properly before us on this appeal from the denial of his contempt petition.
Accordingly, we affirm. See In Interest of K.L.S., 594 Pa. 194, 934 A.2d
1244 (2007) (stating trial court’s order or judgment is more properly
“affirmed,” when appellant has failed to preserve issues for appeal).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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