J.P. v. J.S. ( 2019 )

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]
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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.
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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:
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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.
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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
Mother in this case could have preserved her appeal:
Nothing in our rules precludes Mother from filing both a motion
for reconsideration and a notice of appeal. It often is prudent
for a litigant to file both; if the trial court does not grant
the motion for reconsideration before the expiration of the
thirty days in which the litigant can file a notice of appeal,
the litigant will lose the right to appeal. See Pa.R.A.P. 1701;
Orfield v. Weindel, 52 A.3d 275, 277 (Pa. Super. 2012).
M.O. v. J.T.R., 85 A.3d 1058, 1061 n.1 (Pa. Super. 2014) (emphasis and
underline added).
Similarly, in Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super.
2000), we stated:
[A]s the comment to Pa.R.A.P. 1701 explains, although a party
may petition the court for reconsideration, the
simultaneous filing of a notice of appeal is necessary to
preserve appellate rights in the event that either the trial
court fails to grant the petition expressly within 30 days,
or it denies the petition. Moreover, we have consistently held
that an appeal from an order denying reconsideration is improper
and untimely.
Id. at 1254 (citations omitted) (emphasis added).
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As referenced above, Rule 1701 “codified the well-established principle
regarding the inherent authority of the trial court, and clarified the fact that a
motion for reconsideration does not act as a stay of the appeal period.” Moore
v. Moore, 634 A.2d 163, 167 (Pa. 1993). The Rule states:
Authority of a trial court or agency after appeal. After an
appeal is taken or review of a quasijudicial order is sought, the
trial court or other government unit may:
(1) Take such action as may be necessary to preserve the status
quo, correct formal errors in papers relating to the matter,
cause the record to be transcribed, approved, filed and
transmitted, grant leave to appeal in forma pauperis, grant
supersedeas, and take other action permitted or required by
these rules or otherwise ancillary to the appeal or petition
for review proceeding.
(2) Enforce any order entered in the matter, unless the effect
of the order has been superseded as prescribed in this
chapter.
(3) Grant reconsideration of the order which is the subject of
the appeal or petition, if:
(i) an application for reconsideration of the order is filed in
the trial court or other government unit within the time
provided or prescribed by law; and
(ii) an order expressly granting reconsideration of such prior order
is filed in the trial court or other government unit within the time
prescribed by these rules for the filing of a notice of appeal or
petition for review of a quasijudicial order with respect to such
order, or within any shorter time provided or prescribed by law for
the granting of reconsideration.
A timely order granting reconsideration under this paragraph shall
render inoperative any such notice of appeal or petition for review
of a quasijudicial order theretofore or thereafter filed or docketed
with respect to the prior order. The petitioning party shall and any
party may file a praecipe with the prothonotary of any court in
which such an inoperative notice or petition is filed or docketed
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and the prothonotary shall note on the docket that such notice or
petition has been stricken under this rule. Where a timely order of
reconsideration is entered under this paragraph, the time for filing
a notice of appeal or petition for review begins to run anew after
the entry of the decision on reconsideration, whether or not that
decision amounts to a reaffirmation of the prior determination of
the trial court or other government unit.
Pa.R.A.P. 1701(b) (emphasis added).
Consistent with the procedural history and legal authority set forth
above, we conclude that Mother’s appeal filed on February 14, 2019 was
untimely and must be quashed. We quashed an appeal in a similar case,
stating:
[Appellant] had thirty days from the entry of the order or until July
2, 1997, to file an appeal, unless the trial court expressly vacated
the order of May 30, 1997, and granted reconsideration. While
the trial court did schedule a hearing on the motion for
reconsideration, this was insufficient to toll the appeal period.
Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d 912 (1989) (in
order to extend time for taking appeal, trial court must vacate
order and grant reconsideration; the mere scheduling of a hearing
on the matter is insufficient). Since the order was not vacated
and no appeal was filed within 30 days of the entry of the final,
appealable order of equitable distribution, this appeal must be
quashed as untimely. Furthermore, an appeal will not lie from the
denial of a motion for reconsideration. Valentine v. Wroten, 580
A.2d 757, 397 Pa.Super. 526 (1990).
Karschner v. Karschner, 703 A.2d 61, 62 (Pa. Super. 1997) (emphasis in
original).
Here, Mother had 30 days from the entry of the January 2, 2019 order
or until February 1, 2019 to file an appeal, unless the trial court expressly
vacated the January 2, 2019 order and granted reconsideration. Although the
trial court stated in its January 29, 2019 order denying reconsideration that it
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was amending “our opinion . . . to correct and clarify the record,” we find that
action “insufficient to toll the appeal period,” because, inter alia, “an appeal
will not lie from the denial of a motion for reconsideration.” See Order,
1/29/19, at 1.
Further, the docket simply indicates “RECONSIDERATION DENIED,” with
no indication, as required by Rule 1701(b)(3)(ii), that reconsideration was
“expressly granted” to toll the appeal period. See Estate of Haiko v.
McGinley, 799 A.2d 155 (Pa. Super. 2002) (trial court’s order granting
reconsideration must state expressly and unequivocally that reconsideration
is granted); see also Schoff v. Richter, 562 A.2d 912 (Pa. Super. 1989) (an
order granting reconsideration will be effective only if it is made and entered
on the docket); Cheathem v. Temple University Hospital, 743 A.2d 518,
520 (Pa. Super. 1999) (holding that a motion for reconsideration does not toll
the appeal period unless the trial court expressly grants reconsideration within
30 days of the appealable order).
The above notwithstanding, we recognize that the trial court on January
29, 2019, in its own words “den[ied], without a hearing, the petition, but
amend[ed] our opinion to correct and clarify the record for the following
reasons . . .” Order, 1/29/19, at 1 (emphasis added). The trial court stated
that the changes “did not have a material impact on the outcome of our
relocation and custody analysis . . . so we did not disturb the custodial
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arrangements from our January 2, 2019 order.” Trial Court Opinion, 3/13/19,
at 5.
As indicated in Pa.R.A.P. 1701(b)(1), a trial court may take action
necessary to preserve the status quo and correct formal errors “in papers
relating to the matter.” Although the trial court in this case preserved the
status quo and made corrections prior to Mother filing her appeal on February
14, 2019, it was within its authority to do so. We have addressed “a court’s
inherent authority to correct mistakes.” Manufacturers & Traders Tr. Co.
v. Greenville Gastroenterology, SC, 108 A.3d 913 (Pa. Super. 2015). We
explained:
In addition to its equitable power to reconsider an otherwise final
order after 30 days, a court has inherent power “to amend its
records, to correct mistakes of the clerk or other officer of the
court, inadvertencies of counsel, or supply defects or omissions in
the record” at any time. Manack v. Sandlin, 812 A.2d 676, 680
(Pa. Super. 2002); see Pa.R.A.P. 1701(b)(1) (recognizing a trial
court’s inherent authority to “correct formal errors” in the record
notwithstanding a pending appeal). However, “[a] major
substantive change, such as the total withdrawal of an order
relative to a motion of record does not constitute a corrective
order within the inherent powers of the trial court or the court's
statutory authority.” Manack, 812 A.2d at 682. “Absent a specific
rule or statute, the only exception is to correct obvious technical
mistakes (e.g., wrong dates) but no substantive changes can be
made.” Ettelman v. Cmwlth. Dep't of Transp., 92 A.3d 1259,
1262 (Pa. Cmwlth. 2014) (emphasis added). The ability to correct
orders is limited to errors that are patent or obvious on the face
of the record. ISN Bank, 83 A.3d at 172–73.
Manufacturers & Traders Tr. Co., 108 A.3d at 921.
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Finally, we recognize that this decision does not put Mother out of court.
“[P]etitions for modification of custody orders may be entertained at any time
without regard to whether there have been any material changes which would
warrant a reevaluation.” Martin v. Martin, 562 A.2d 1389, 1390 (Pa. Super.
1989) (citation omitted). Our Supreme Court has provided “a directive that
petitions for modification of custody orders may be filed at any time, and in
all such cases the court hearing the petition must consider the best interests
of the child or children.” Id. at 1391.
Consistent with the foregoing, we quash Mother’s appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/19
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