W.S. and E.S. v. M.S. and J.S. ( 2019 )

J-A18041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
W.S. AND E.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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v. :
:
:
M.S. AND J.S. :
___________________ :
M.S. :
:
:
v. :
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J.S. :
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APPEAL OF: J.S. : No. 245 WDA 2019
Appeal from the Order Entered January 11, 2019
in the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-17-009101
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2019
J.S. appeals from the Order denying her Motion for Recusal in the
underlying custody action. We dismiss the appeal.
The trial court thoroughly set forth the relevant factual and procedural
history underlying this appeal in its Opinion, which we incorporate as though
fully set forth herein. See Trial Court Opinion, 4/2/19, at 1-11.
On appeal, J.S. raises the following issues for our review:
I. Did the trial court abuse its discretion when it failed to recuse
itself where substantial doubt exists as to [the trial judge’s] ability
to preside fairly and impartially?
J-A18041-19
II. Did the trial court err and abuse its discretion when it denied
[J.S.’s] Motion for Recusal without a hearing?
Brief for Appellant at 5.
Before we may entertain the merits of J.S.’s underlying claims, we must
first determine whether this Court has jurisdiction to consider the appeal. See
Murphy v. Int’l Druidic Soc’y, 152 A.3d 286, 289 (Pa. Super. 2016) (stating
that “the appealability of an order goes directly to the jurisdiction of the Court
asked to review the order.” (internal citation and quotation marks omitted));
see also Commonwealth v. Davis, 176 A.3d 869, 873 (Pa. Super. 2017)
(recognizing that this Court may raise the issue of jurisdiction sua sponte).
“As a general rule, only final orders are appealable, and final orders are
defined as orders disposing of all claims and all parties.” Haviland v. Kline
& Specter, P.C., 182 A.3d 488, 492 (Pa. Super. 2018) (internal citations and
quotation marks omitted). However, an appeal may also be taken from an
interlocutory order as of right, an interlocutory order by permission, or a
collateral order. See Kensey v. Kensey, 877 A.2d 1284, 1287 (Pa. Super.
2005).
In its Opinion, the trial court addressed whether the Order from which
J.S. seeks to appeal falls within any of the above-mentioned categories of
orders over which this Court has jurisdiction. See Trial Court Opinion, 4/2/19,
at 11-17. We incorporate the trial court’s cogent analysis as though fully set
forth herein. See id. The trial court emphasized the following:
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J-A18041-19
 [T]he [r]ecusal Order has not been labeled or deemed to be
final or requiring an immediate appeal. Nor does it dispose
of all claims and parties. … [N]one of the [c]ourt’s [O]rders
have been intended to constitute a complete resolution of
the custody claims pending between the parties;
 The [r]ecusal Order does not fall within the scope of
[interlocutory orders appealable as of right] … under
[Pa.R.A.P.] 311…;
 The [r]ecusal Order does not contain the requisite language
… necessary for the Superior Court to invoke jurisdiction [for
an interlocutory appeal by permission] pursuant to 42
Pa.C.S.[A.] § 702(b);
 The Superior Court has held that the denial of a pre-trial
motion to recuse does not fit into … [Pa.R.A.P.] 313
[(governing appealable collateral orders)].
Id. at 11-12, 16, 17 (internal citations and quotation marks omitted).
Because this Court does not have jurisdiction to entertain an appeal
from the trial court’s Order, we must dismiss the appeal.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2019
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J-A18041-19
-4-
Circulated 09/10/2019 11:50 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
w, ., '
' and E. No: FD 17�009101-002
SI
Superior Court #245 WDA 2019
Plaintiffs,
v. OPINION
M s and BY:
J( s Honorable Susan Evashavik DiLucente
704 City County Building
Defendants. 414 Grant Street
Pittsburgh, PA 15219
M S.
Plaintiff, COPIES TO:
v. Counsel for W, & E' ,S
C. Kurt Mulzet, Esquire
411 71t1 Avenue, Suite 1200
Pittsburgh, PA 15219
Defendant.
Counsel for M ·S
Jennifer M. McEnroe, Esquire
630 Oliver Building
535 Smithfield Street
Pittsburgh, PA 15222
Counsel for J .: 5
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Richard Ducote, Esquire
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4800 Liberty Avenue, Floor 2
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Pittsburgh, PA l 5224
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Guardian Ad Litem:
_.J Lea E. Anderson, Esquire
437 Grant Street
LL 1400 Fick Building
Pittsburgh, PA 15219
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY. PENNSYLVANIA
FAMILY DIVISION
FAMILY DIVISION
W. S ,::md No: FD 17-009101-002
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Superior Court #245 WDA 20 l 9
Plaintiffs.
v.
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Defendants.
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Plaintiff,
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Defendant.
OPINION
Evashavlk DILucente, J. April 2, 2019
I. Background
The parties to this action, Defendant J s ("Mother,,) and Plaintiff M
S· ("Father
11),
married in April 2003. The marriage produced two children,A.S. (DOB:
8/6/04) and T.S. (DOB:1/27/06) (collectively, the "Children").
On October 12, 2017, Father initiated the instant proceedings by filing a complaint for
shared legal and primary custody of the Children. Mother filed a counter-complaint seeking the
same relief, and Father subsequently filed for divorce. Shortly thereafter, the parties filed cross-
petitions for protection from abuse, which ultimately resulted in the entry of a mutual no-contact
order, with a provision for Father and Children to commence reunification counseling.
1
The parties proceeded through Generations and participated in a hearing to establish an
interim physical custody schedule, wherein Father was granted supervised visitation. In addition
and among other things, the Children's paternal grandparents ("Paternal Grandparents") filed a
complaint for partial custody and received limited visitation, a guardian ad litem was appointed
for the Children, and psychological evaluations were ordered.
Numerous motions were presented and this Court conducted several conciliations
regarding the status of the reunification counseling and Father's visitation, as the Children
effectively refused to participate in both. Between the October 2017 initiation of this custody
action and the entry of the October 26, 2018 Consent Order, which was the subject of Mother's
companion appeal, Father and the Children's relationship had actually deteriorated. Issues were
raised regarding the Children's emotional and mental health. Concerns arose over allegations
that the Children had become alienated/estranged from Father and Paternal Grandparents.
In an attempt to address the alienation/estrangement and Children's health concerns,
Father presented an emergency ex parte petition regarding custody to this Court. Father averred
that the Children's defiant behaviors were escalating, putting their safety at risk. Further, he
alleged that Mother and the Children were a flight risk. In response, the Court entered an order
on October 9, 2018 (though the order was inadvertently dated October 5, 2018) providing, inter
alia, that
• Father received sole legal custody of the Children, see Interim Order of Court
Regarding Custody Dated 10/5/2018 (the "October 9 Order") at 11;
• Father received sole physical custody of the Children, though they were
required on an interim basis to reside with their paternal aunt and uncle in
Texas pending further order of court, id. at 1 2;
• the Children would have no contact with Mother pending further order of
court, id. at � 7; and
2
• a hearing would occur on October 25, 2018, to review the interim order itself
and to address Mother's no-contact order and any therapeutic interventions
that might be needed for the Children, id. at ,i� 9� 10 & 20.
The Children were subsequently transported to Texas where they began living with their paternal
aunt and uncle and receiving therapeutic treatment..
Mother sought relief related to the October 9 Order in the Superior Court, which
docketed that proceeding at 96 WDM 2018. By order entered on October 17, 2018, the Superior
Court, among other things, stayed the October 9 Order, mandated that the Children be returned
from Texas, required that the parties and this Court reestablish "the status quo" that existed prior
to entry of the October 9 Order, and stated that this Court must hold a hearing within ten (10)
days of October 16, 2018, with notice to all parties.
The Children returned from Texas and to Mother.
After receiving the Superior Court's order in 96 WDM 2018, this Court entered an order
on October 18, 2018, expanding by one day the previously scheduled hearing related to the
October 9 Order. Accordingly, the hearing originally set for October 25, 2018, was rescheduled
for October 25 and 26, 2018.
The parties - i.e., Mother, Father, and Paternal Grandparents - and their counsel appeared
before this Court on October 25, 2018, for the bearing. Mother's counsel then made an oral
motion for recusal (the "October Recusal Motion") based upon the October 9 Order, which the
Superior Court addressed in 96 WDM 2018, and the proceedings leading to its entry. See
October 25-26, 2018 Hearing Transcript ("HT") at 13-20. The Court denied the October Recusal
Motion. Id. at 20.
The hearing subsequently began. Among other individuals, the court-appointed expert in
custody evaluation Dr. Neil D. Rosenblum ("Dr. Rosenblum") testified. He explained that he
3
performed a psychological evaluation for the Children's custody, and Dr. Rosenblum noted that
in doing so:
[t]he parties, the [M]other and the [Fjather, were initially
interviewed by [Dr. Rosenblum's] associate ... on 6/25/18 and
6/29/18. [He then] did [his own] individual interviews with each
parent. Father first, on 7/23/18 and 8/9/18. (Dr. Rosenblum] met
with Mother and the [Children] ... on 8/21/18 and also
interviewed each boy individually on that date. On 9/6/18, [he] did
a follow-up interview with the [F]ather. On 9/10/18, [Dr.
Rosenblum] met with the [P]atemal [G]randparents ..•. On
9/24/18, [he] did a follow-up interview with Mother .... On
10/1/18, [he] did a joint interview with Mother and Father. And
lastly, on 10/4/18, [Dr. Rosenblum] met with the [Children] and
Mother for a follow-up family interview, and then did a family
interview with the [Children] Mother, and paternal grandmother ..
HT at 25-26. Dr. Rosenblum also prepared a thirty-four (34) page, single-spaced Psychological
Evaluation For Custody report (the "Expert Report"), which was admitted into evidence. See HT
at 88.
Dr. Rosenblum then testified to his findings. He explained that in his "35 years of doing
these evaluationsl.]" he had never seen a worse case of alienation from a parent, here Father.
See id. at 138 & 139 ("This is the most severe pattern of alienation of any case that I've worked.
That is correct. And that will be 35 years of doing these evaluations."). He stressed that 966 A.2d 1148, 1151 (Pa. Super. Ct. 2009)
(citation and quotation marks omitted). In this Commonwealth, an appeal may be taken from
only four types of orders, see id., and the Recusal Order Mother seeks to appeal does not fit
within any category.
First, a litigant may appeal a final order. G.B. v. M.M.B., 670 A.2d 714, 717 (Pa. Super.
Ct. 1996); see also 42 Pa. C.S. § 5105; Pa. R.A.P. 341. A final order either "disposes of all
claims and of all parties" or is so labeled by the tribunal after determining that "an immediate
appeal would facilitate resolution of the entire case." Pa. R.A.P. 341(b) & (c).
Here, the Recusal Order has not been labeled or deemed by this Court to be final or
requiring an immediate appeal. Nor does such order dispose of all claims and parties. Brief
comment on finality and custody law as well as the procedural posture of this case is now
warranted. Our appellate courts have held that in the custody context, an "order will be
considered final and appealable only if it is both: 1) entered after the court has completed its
11
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., 670 A.2d at 7'2IJ. Such a holding, the
Superior Court has explained:
will protect [a] child from the protraction of custody litigation
through repetitive appeals while still allowing prompt and
comprehensive review of custody determinations. It will 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. [The] 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, [the courts]
have attempted to serve primarily the best interests of the child.
Id. at 720-21.
In the instant proceedings, the Court has not completed a custody hearing on the merits
and none of the Court's orders have been intended "to constitute a complete resolution of the
custody claims pending between the parties." Id. at 720. Indeed, the October 2018 Order notes
that the Children will- "[o]n an interim basis" - temporarily reside with their aunt and uncle
"pending further Order of Court," See October 2018 Order at ,r 2. Said order also clearly
contemplates continued treatment and therapeutic intervention for the Children under Dr.
Rosenblum's direction, which treatment/intervention is necessary before a final decision on
custody can be made. See id. at� 1. The October 2018 Order additionally states that "[a] Status
Conference with counsel regarding the provisions of th]e] ... Order shall be convened and
scheduled by the Court no later than thirty (30) days from the date of th[e] ... Order of Court."
12
Id. at ,r 12. Thus, the October 2018 Order on its face requires further action with respect to
custody, and all parties and counsel understood the plain fact that the Court had yet to make a
final determination pursuant to 23 Pa. C.S. § 5323(a) (defining the types of custody that can be
awarded).
Nothing about the January 2019 Order-which declined to vacate the October 2018
Order - alters this analysis. Said order did nothing to the custodial framework in place at the
time it was entered. The interim arrangement established by the Court in late 2018 remained in
place and continues to remain in place. That arrangement is temporary and remedial in nature.
This Court intended, but has been unable due to the appeals Mother filed, to regularly review the
therapeutic progress of the children and parties and to adjust the interim order if appropriate.
Once sufficient progress had been made to return the children to Pennsylvania, and their
conditions stabilized, a custody trial could and can be scheduled.
Turning to the Recusal Order, it is thus clear that the same is a pre-trial order, one made
in advance of further and already contemplated custody proceedings. The Superior Court has
clearly held that "a pre-trial motion seeking to recuse a judge from further proceedings is not a
final order." Krieg v. Krieg, 743 A.2d 509, 511 (Pa. Super. Ct. 1999). Such is the case even in
the child custody context. See generally id.Accordingly, the Recusal Order is not a final order. This Court has not labeled it as final
or determined that an immediate appeal is necessary. Moreover, neither the October 2018 Order,
nor the January 2019 Order, created a permanent or even allegedly permanent custodial
framework, making the Recusal Order a pre-trial order not subject to immediate review. This
Court thus respectfully submits that the Superior Court cannot base jurisdiction of Mother's
appeal on its review of a final order.
13
Second, a litigant may appeal from certain interlocutory orders as of right. See Stahl v.
Redcay. 897 A.2d 478, 485 (Pa. Super. Ct. 2006). Rule 311 of the Pennsylvania Rules of
Appellate Procedure sets forth the types of interlocutory orders that qualify. See also Pa. R.A.P.
311. Among other things, Rule 311 states:
(a) General rule.--An appeal may be taken as of right and without
reference to Pa.R.A.P. 341(c) from:
(l)Affecting judgments.--An order refusing to open, vacate, or
strike off a judgment. H orders opening, vacating, or striking off a
judgment are sought in the alternative, no appeal may be filed until
the court has disposed of each claim for relief.
(2)Attachments, etc.--An order confirming, modifying, dissolving,
or refusing to confirm, modify or dissolve an attachment,
custodianship, receivership, or similar matter affecting the
possession or control of property, except for orders pursuant to 23
Pa.C.S. §§ 3323(1), 3505(a).
(3) Change of criminal venue or venire. --An order changing venue
or venire in a criminal proceeding.
(4) Injunctions.--An order that grants or denies, modifies or refuses
to modify, continues or refuses to continue, or dissolves or refuses
to dissolve an injunction unless the order was entered:
(i) Pursuant to 23 Pa.C.S. §§ 3323(f), 3505(a); or
(ii) After a trial but before entry of the final order. Such order is
immediately appealable, however, if the order enjoins conduct
previously permitted or mandated or permits or mandates conduct
not previously mandated or permitted, and is effective before entry
of the final order.
(5) Peremptory judgment in mandamus.--An. order granting
peremptory judgment in mandamus.
(6)New trials.--An order in a civil action or proceeding awarding a
new trial, or an order in a criminal proceeding awarding a new trial
where the defendant claims that the proper disposition of the
matter would be an absolute discharge or where the
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Commonwealth claims that the trial court committed an error of
law.
(7) Partition.--An order directing partition.
(8) Other cases. --An order that is made final or appealable by
statute or general rule, even though the order does not dispose of
all claims and of all parties.
(b) Order sustaining venue or personal or in remjurisdiction.--
An appeal may be taken as of right from an order in a civil action
or proceeding sustaining the venue of the matter or jurisdiction
over the person or over real or personal property if:
(1) the plaintiff, petitioner, or other party benefiting from the order
files of record within ten days after the entry of the order an
election that the order shall be deemed final; or
(2) the court states in the order that a substantial issue of venue or
jurisdiction is presented.
(c) Changes of venue, ete.-An appeal may be taken as of right
from an order in a civil action or proceeding changing venue,
transferring the matter to another court of coordinate jurisdiction,
or declining to proceed in the matter on the basis of forum non
conveniens or analogous principles.
(d) Commonwealth appeals in criminal cases.v-In a criminal
case, under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end the
entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the
prosecution.
(e) Orders overruling preliminary objections in eminent
domain cases.--An appeal may be taken as of right from an order
overruling preliminary objections to a declaration of.taking and an
order overruling preliminary objections to a petition for
appointment of a board of viewers.
(f) Administrative remand.--An appeal may be. taken as of right
from: (1) an order of a common pleas court or government unit
remanding a matter to an administrative agency or hearing officer
for execution of the adjudication of the reviewing tribunal in a
15
manner that does not require the exercise of administrative
discretion; or (2) an order of a common pleas court or government
unit remanding a matter to an administrative agency or hearing
officer that decides an issue that would ultimately evade appellate
review if an immediate appeal is not allowed.
Pa. R.A.P. 311. The Recusal Order does not fall within the scope of the above. See also Krieg,
743 A.2d at 511 ("an appeal from a denial of a pre-trial motion to recuse does not fit into any of
the categories listed in Rule[] 311 ... "). Accordingly, this Court respectfully submits that Rule
311 does not provide the Superior Court with a basis to conclude it has jurisdiction over
Mother's pending appeal.
Third, a litigant may appeal an interlocutory order if given permission to do so. See 42
Pa. C.S § 702(b); see·also Pa. R.A.P. 312. The governing statute states:
When a court or other government unit, in making an interlocutory
order in a matter in which its final order would be within the
jurisdiction of an appellate court, shall be of the opinion that such
order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate
termination of the matter, it shall so state in such order. The
appellate court may thereupon, in its discretion, permit an appeal to
be taken from such interlocutory order.
42 Pa. C.S. § 702(b). The Recusal Order does not contain the requisite language set forth above,
and for good reason: the Court does not believe the Recusal Order meets the requirements
necessary for the Superior Court to invoke jurisdiction pursuant to 42 Pa. C.S. § 702(b).
Notably, Mother has also not asked this Court to include the language needed to trigger 42 Pa.
C.S. § 702(b). Jurisdiction based on an interlocutory order appealable by permission does not>
this Court respectfully submits, exist.
16
Finally, a litigant may take an appeal as of right from a collateral order. See Pa. R.A.P.
313(a}. "A collateral order is an order separable from and collateral to the main cause of action
where the right involved is too important to be denied review and the question presented is such
that if review is postponed until final judgment in the case, the claim will be irreparably lost,"
Pa. R.A.P. 313(b). The Superior Court has held that the denial of a "pre-trial motion to recuse
does not fit into ... Rule] ] ... 313/' see Krieg, 743 A.2d at 511; accordingly, the Recusal Order
is not collateral or, therefore, appealable at this time.
Based on the foregoing, this Court respectfully submits that the Superior Court does not
have jurisdiction over Mother's appeal of the Recusal Order. Said appeal does not involve a
final order, interlocutory order appealable as of right or by permission, or collateral order.
Mother's appeal should, therefore, be quashed.
III. Mother's Allegations of Error
Should the Superior Court disagree and not quash Mother's appeal, the Recusal Order
should be affirmed.
Mother raises two purported errors regarding said order. First, she alleges that
"substantial doubt exists as to [the Court's] ability to preside fairly and impartially." Mother
bases her allegation on the Court's entry and the circumstances surrounding the entry of the
October 9 Order, the October 2018 Order, the October 31 Order, and the November 1 Order. In
addition, Mother cites to the off-record December 4 Status Conference as well as her belief that
the Court was required to be a necessary witness at a hearing on the Petition to Vacate and in
Mother's criminal proceedings. Mother's position fails.
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At the outset, and should the Superior Court deem the Recusal Order ripe for appeal, this
Court notes that Mother's allegations about the Court's conduct and ability to preside fairly and
impartially are belied by her own actions. Mother and her counsel - who were familiar with the
appellate process and seeking relief through the same - never sought to appeal or challenge the
Court's denial of the October Recusal Motion. They also never appealed or challenged the
October 2018 Order prior to January 2019, the October 31 Order, the November 1 Order, or the
November 2 Order. Indeed, they did not seek this Court's recusal after entry of the October
2018 Order through and including the December 4 Status Conference, despite much activity
occurring in this case. Only when Mother sought to present her Petition to Vacate, did she re-
allege a basis for recusal.
Our Supreme Court has stated that "the law is clear[:] [i]n this Commonwealth, a party
must seek recusal of a jurist at the earliest possible moment, i:e., when the party knows of the
facts that form the basis for a motion to recuse." Lomas v. Kravitz, 170 A.3d 380, 390 (Pa.
2017). "If the party fails to present a motion to recuse at that time, then the party's recusal issue
is time-barred and waived." Id.Mother's issue here is, thus, arguably waived and time-barred. As noted, she took no
action with respect to the denial of the October Recusal Motion. She and/or her counsel attended
and participated in the October 25 and 26, 2018 hearing, and the entry of the October 2018
Order. She did not object to or challenge this Court's impartiality during (i) the proceedings
leading to the entry of the October 31 Order, the November 1 Order, and the November 2 Order
or (ii) the holding of the December 4 Status Conference.
Even if not waived, the Court notes that the law "presumes judges of this Commonwealth
are honorable, fair and competent, and, when confronted with a recusal demand, have the ability
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to determine whether they can rule impartially and without prejudice," Commonwealth v.
Kearney, 92 A.3d 51, 60 (Pa. Super. Ct. 2014) (quotation marks and citation omitted). Indeed:
[ajs a general rule, a motion for recusal is initially directed to and
decided by the jurist whose impartiality is being challenged. In
considering a recusal request, the jurist must first make a
conscientious determination of his or her ability to assess the case
in an impartial manner, free of personal bias or interest in the
outcome. The jurist must then consider whether his or her
continued involvement in the case creates an appearance of
impropriety and/or would tend to undermine public confidence in
the judiciary. This is a personal and unreviewable decision that
only the jurist can make. Where a jurist rules that he or she can
hear and dispose of a case fairly and without prejudice, that
decision will not be overruled on appeal but for an abuse of
discretion.
Id. (citation omitted).
The Court made the calculus required by the above and determined that it could and can
assess the instant case "in an impartial manner, free of personal bias or interest in the outcome."
Id. In addition, the Court concluded - and still believes - that its continued involvement in the
case did not and does not create "an appearance of impropriety" and would not and will not
"tend to undermine public confidence in the judiciary." Id. The Court thus properly denied
Mother's request for recusal,
That Mother desired to call the Court as a witness does not compel a contrary conclusion.
Regarding the Court's potential testimony at a hearing on the Petition to Vacate, said hearing did
not occur and for good reason: Mother premised such a petition upon a breach of contract
theory, and such a theory did not justify granting her relief. Accordingly, no hearing on the
Petition to Vacate was needed.
Children "cannot be made the subject of a contract with the same force and effect as if
[they] were ... mere chattel." In Com. ex. rel. Veihdeffer v. Veihdeffer, 344 A.2d 613, 614 (Pa.
19
Super. Ct. 1975). Indeed, "it is well settled that an agreement between ... parties as to custody
is not controlling', on courts, which are instead required to take into account all relevant
considerations. Id. Ultimately, any agreement between the parties that is - after all relevant
considerations are reviewed - adopted by a court into an order acts to "bind the parties and
governs further court action in the same manner as any other custody order issued by a court,"
Supko v. Monoskey, 461 A.2d 253, 256 (Pa. Super. Ct. 1983) (citation omitted) (original
emphasis omitted) (new emphasis added). Accordingly, a consent custody order, like the
October 2018 Order which was the subject of Mother's Petition to Vacate, must be treated like
any other custody order, not a contract.
Mother did not cite any case law to the contrary or that held consent custody orders
constituted contracts and must be interpreted as such. See Petition To Vacate at fl 9-17; see also
Sams v. Sams, 808 A.2d 206 (Pa. Super. Ct. 2002) (cited by Mother and using principles of
contractual interpretation, in part, to analyze a child support agreement. not a custody order, and
also noting that "[a] mother cannot, by contract, bargain away the right of her minor children to
adequate support from the father, regardless of the validity of the agreement as between the
parents themselves •.. [because i]n each case it is for the court to determine whether or not the
terms of the agreement are reasonable, made without fraud or coercion, and have been carried
out in good faith" (citation omitted)); Adams v. Adams, 848 A.2d 991 (Pa. Super. Ct. 2004)
(cited by Mother and applying rules of contractual interpretation to a settlement agreement
concerning marital property rights, not custody of Children); Bianchi v. Bianchi, 859 A.Zd 511
(Pa. Super. Ct. 2004) (cited by Mother and discussing principles of contractual interpretation in
relation to a property settlement agreement between husband and wife, not a custody order);
Yates v. Yates, 936 A.2d 1191 (Pa. Super. Ct. 2007) (cited by Mother and involving a custody
20
order, but not applying principles of contractual interpretation to the same and noting, among
other things, that the trial "court ... [wa]s certainly correct in observing that where a custody
agreement between the parties is incorporated into a court order that agreement becomes as
binding upon the parties any other portion of the court's order"); Colonna v. Colonna, 791 A.2d
353 (Pa. Super. Ct. 2001) (cited by Mother and involving an antenuptial agreement); Kraisinger
v. Kraisinger, 928 A.2d 333 (Pa. Super. Ct. 2007) (cited by Mother and pertaining to the child
support portion of a marriage settlement agreement); Ferguson v. McKieman, 940 A.2d 1236(Pa. Super. Ct. 2007) (cited by Mother and involving agreement as to child support between
mother and sperm donor).
This Court, therefore, did not hold a hearing to adjudicate Mother's Petition to Vacate.
Said petition could not obtain relief through a breach of contract theory. No hearing would have
changed that result. Accordingly, no hearing was held in the instant proceedings at which the
Court was required to testify.
Concerning any criminal trial/hearing involving Mother's conduct with respect to the
instant custody proceedings, the Court notes that it has not been called to testify and, moreover,
would not be presiding over such a matter in any event, making Rule 605 of the Pennsylvania
Rules of Evidence - cited by Mother - inapplicable. See Pa.R.Evid.P. 605 ("The presiding
judge may not testify as a witness at the trial or other proceeding." (emphasis added)).
Second, Mother contends the Court erred by entering the Recusal Order without holding
a hearing. Notably, Mother did not request a hearing in her motion for recusal. She also never
objected to the lack of a hearing until she filed her statement pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. Accordingly; Mother has not properly preserved
this allegation of error for appellate review. See Pa.R.A.P. 302(a) ("[i]ssues not raised in the
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lower court are waived and cannot be raised for the first time on appeal"); see also Beemac
Trucking, LLC v. CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa. Super. Ct. 2016) ("[a]n issue
raised for the first time in a concise statement is waived').
The Court submits, therefore, that based on the foregoing, if the appeal at 245 WDA 2019
is not quashed, the Recusal Order should be affirmed, Mother's arguments are either waived or
lack merit.
IV. Conclusion
For the reasons set forth above, Mother's pending appeal should be quashed. In the event
it is not, the Recusal Order should be affirmed.
BY THE COURT:
� i:
____________, J.
V)
Susan Evashavik DiLucente
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