S.K. v. C.K. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
C.K. : No. 1311 EDA 2022
Appeal from the Order Entered April 25, 2022
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2017-005758
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 22, 2022
S.K. (Father) appeals from the trial court’s Amended Custody Order,
dated April 18, 2022, and entered on April 25, 2022, that awarded primary
physical custody of the parties’ three children to C.K. (Mother) with Father
awarded partial physical custody every other weekend from Friday to Monday
during the school year. During the summer, the parties were awarded shared
physical custody on an alternating week-to-week schedule. The parties were
awarded joint legal custody. For the reasons that follow, we conclude that
Father’s issues are waived and, therefore, we affirm.
Mother and Father were married in 2004 and divorced in 2017. They
are the parents of Ad.K. and Ar.K., twins born in December of 2011, and L.K.,
born in January of 2014. This most recent litigation was initiated by Father’s
filing of a Petition to Modify Custody on January 29, 2021. Following the
hearings held on August 2, 2021, August 3, 2021, November 9, 2021, and
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December 20, 2021, the trial court issued the order now on appeal. In
addition to the April 25, 2022 order, the court filed a document entitled,
“Findings of Fact and Conclusions of Law in Support of Amended Final Custody
Order,” which was dated April 18, 2022. That document set forth the court’s
analysis of the sixteen factors listed in 23 Pa.C.S. § 5328(a), which must be
considered when entering a custody order.
Upon receipt of the custody order, Father filed a timely appeal,
accompanied by a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i), which requires that in a children’s fast
track appeal “[t]he concise statement of errors complained of on appeal shall
be filed and served with the notice of appeal.” However, Father’s eight-page
concise statement contains forty-one (41) issues, which does not comply with
the requirements as set forth in Pa.R.A.P. 1925(b)(4). Therefore, based upon
the following, we conclude that no issues were preserved for appellate review.
In Commonwealth v. Lord, … 719 A.2d 306 (Pa. 1999), the
Pennsylvania Supreme Court specifically held that “from this date
forward, in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to
[Pennsylvania Rule of Appellate Procedure] 1925.” Lord, 719
A.2d at 309. “Any issues not raised in a 1925(b) statement will
be deemed waived.” Id. This Court explained in Riley v. Foley,
783 A.2d 807, 813 (Pa. Super. 2001), that Rule 1925 is a crucial
component of the appellate process because it allows the trial
court to identify and focus on those issues the parties plan to raise
on appeal. This Court has further explained that “a Concise
Statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent to no Concise
Statement at all.” Commonwealth v. Dowling, 778 A.2d 683,
686-87 (Pa. Super. 2001). “Even if the trial court correctly
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guesses the issues [a]ppellants raise[] on appeal and writes an
opinion pursuant to that supposition the issues [are] still waived.”
Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super.
2002).
Kanter v. Epstein, 866 A.2d 394, 400 (Pa. Super. 2004).
Here, the trial court included the following footnote in its opinion in
response to Father’s concise statement:
This trial court reminds counsel of the observation by the
Honorable Ruggero Aldisert, Senior Circuit Judge of the United
States Court of Appeals for the Third Circuit, that this Court has
previously cited in Kenis v Perini Corp., … 682 A.2d 845 ([Pa.
Super.] 1996), as well as other cases: “When I read an appellant’s
brief that contains ten or twelve points, a presumption arises that
there is no merit to any of them. I do not say that it is an
irrebuttable presumption, but it is a presumption that reduces the
effectiveness of appellate advocacy. Appellate advocacy is
measured by effectiveness, not loquaciousness.[”] Id. at 847 n.3;
see also Commonwealth v Snyder, 870 A.2d 336, 340 (Pa.
Super. 2005) (“The effectiveness of appellate advocacy may suffer
when counsel raises numerous issues, to the point where a
presumption arises that there is no merit to any of them.”)[;] J.J.
DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 410
(Pa. Super. 2012).[] See also Commonwealth v Briggs, 12
A.3d 291, 343 (Pa. 2011) (“The briefing requirements
scrupulously delineated in our appellate rules are not mere trifling
matters of stylistic preference; rather, they represent a studied
determination by our Court and its rules committee of the most
efficacious manner by which appellate review may be conducted
so that a litigant’s right to judicial review as guaranteed by Article
V, Section 9 of our Commonwealth’s Constitution may be properly
exercised.”).
The Pennsylvania Superior Court has long recognized that: “Rule
1925 is a crucial component of the appellate process because it
allows the trial court to identify and focus on those issues the
parties plan to raise on appeal.” Kanter … 866 A.2d [at] 400….
“The Statement shall concisely identify each ruling or error that
the appellant intends to challenge with sufficient detail to identify
all pertinent issues for the judge.” Pa.R.A.P.1925(b)(4)(ii).
However, the filing of a timely Rule 1925(b) statement alone “does
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not automatically equate with issue preservation.” Tucker v.
R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007), affirmed, 977
A.2d 1170 (Pa. 2009). In Tucker, we explained: “[T]his Court
has held that when appellants raise an outrageous number of
issues in their 1925(b) statement, the appellants have deliberately
circumvented the meaning and purpose of Rule 1925(b) and
ha[ve] thereby effectively precluded appellate review of the issues
[they] now seek to raise. We have further noted that such
voluminous statements do not identify the issues appellants
actually intend to raise on appeal…. Further, this type of
extravagant 1925(b) statement makes it all but impossible for the
trial court to provide a comprehensive analysis of the issues.” Id.
at 346 (citations and internal quotation marks omitted; brackets
in original). Thus, “the Pa.R.A.P. 1925(b) statement must be
sufficiently concise and coherent such that the trial court judge
may be able to identify the issues to be raised on appeal, and the
circumstances must not suggest the existence of bad faith.”
Jiricko v. Gelco Tns. Co., 947 A.2d 206, 210 (Pa. Super.
2008)…. See Kanter, 866 A.2d at 401 (finding issues in Rule
1925(b) statements waived where the court determined that
“outrageous” number of issues was deliberate attempt to
circumvent purpose of Rule 1925). “Even if the trial court
correctly guesses the issues Appellant raises on appeal and writes
an opinion pursuant to that supposition the issue[s] [are] still
waived.” Id. at 400 (quoting Commonwealth v. Heggins, 809
A.2d 908, 911 (Pa. Super. 2002)).
Trial Court Opinion (TCO), 6/30/2022, at 1-2 n.1.
We agree with the trial court’s conclusion that all of Father’s issues are
waived in that his concise statement of errors fails to meet the requirements,
being neither concise in length nor in specific of alleged errors. See Satiro
v. Maninno, 237 A.3d 1145, 1151 (Pa. Super. 2020) (finding waiver of all
issues where the Rule 1925(b) statement identified twenty-nine issues,
declaring the issues on appeal were “so voluminous and vague” that the trial
court was forced to guess at what they are and “there can be no meaningful
appellate review”); Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005)
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(concluding that all of wife’s issues were waived after determining wife
“attempted to overwhelm the trial court” by filing a seven-page Rule 1925(b)
statement identifying twenty-nine issues and that wife’s conduct “breache[d]
her duty of good faith and fair dealing with the court and constituted a course
of misconduct which is designed to ‘undermine the Rules of Appellate
Procedure’”) (quoting Kanter, 866 A.2d at 402).
However, despite our agreement with the trial court’s conclusion that all
issues are waived, our review also included the trial court’s alternative
discussion of all forty-one issues listed by Father in his concise statement.
Having considered the certified record, the parties’ briefs, the applicable law,
and the well-reasoned opinion authored by the Honorable Atinuke B. Moss, of
the Court of Common Pleas of Delaware County, dated June 30, 2022, we
would conclude that Judge Moss’s opinion properly disposed of what we deem
to be the apparent issues presented, and we would adopt the trial court’s
opinion in that regard if Father had not waived all of his issues for our review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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