Y.A. v. Z.L. ( 2015 )

J-A22022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Y.A. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
Z.L.
Appellant No. 504 MDA 2015
Appeal from the Order Entered February 25, 2015
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-14-06413
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED AUGUST 31, 2015
Appellant Z.L. (“Mother”) appeals from the order entered February 25,
2015 in the Lancaster County Court of Common Pleas, which denied her
relocation petition. We quash this appeal as interlocutory.
The trial court sets forth the relevant facts and procedural history of
this appeal as follows:
[Y.A. (“Father”)] and [Mother] are former romantic
partners that have one child together, [Y.A.] (DOB:[2]/14)
(“Child”). The parties became a couple when they were
both young and Mother began living with Father while she
was still in high school. The parties began living with each
other in December 2012, living with Father’s family for a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A22022-15
month and then Mother’s family for a month[1] before they
were able to get their own place in February 2013.
Mother became pregnant shortly after they moved out on
their own. Father then lost his job and they decided to
move to Lackawanna County because both Mother and
Father were able to find full-time employment in the
Scranton area with the help of Mother’s step-father’s
niece. Prior to [Child’s] birth, Mother stopped working.
Both parties testified that this loss of income created a
financial struggle for the family. Mother blames Father for
struggling to pay the household bills; however, Father
testified that he worked long hours at his job, but could
not make ends meet.
Mother had [Child] in February 2014. The relationship
continued to deteriorate and Mother left Father in March
2014, filed a [protection from abuse (“PFA”)] action in
Lackawanna County, and went to go live in a women’s
shelter in Lackawanna County. Mother testified that she
didn’t immediately go back to her family’s house in
Lancaster County because she wanted to try to make it on
her own without them. Mother lived in the women’s
shelter from March 2014 until May 2014, but eventually,
Mother did return to Lancaster County to live with her
family.
Both parties introduced evidence that they believe the
other party is mentally unstable. Both parties agree that
Mother and Father’s relationship deteriorated greatly after
they moved to Scranton. Mother testified that Father was
mentally and physically abusive when they were in a
relationship together and that he threatened to commit
suicide after Mother filed the PFA. Father elicited
testimony from Mother regarding her mental health
diagnoses when she was a teenager. Mother testified that
the mental health diagnoses are no longer an issue
because she received counselling at that time and is an
adult and more mature now.
____________________________________________
1
The transcript reflects that the parties lived with Mother’s family first.
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Mother alleged that the final incident leading up to the PFA
occurred as follows:
The last argument that we had, he came from work,
he was upset already. And I was mad at him
because he was not leaving the bathroom clean. He
started throwing diapers to me. And by that time, I
have my baby with me on the bed so the diaper was
hitting her, too. The diaper wasn’t clean so I started
throwing the diapers, I tried to, like, cover myself
and I kick him by accident. And he start punching
me on my legs. After that, he wanted to take the
baby. He didn’t want me to, like, have my baby. He
was, like, oh, I want to be with my baby. I’m like,
no, you’re being really aggressive right now. I don’t
want you with the baby. And he started pulling my
hair and grabbing my arm, and I have my baby in
my arms to like to let me go with the baby. He just
wanted to use her to keep me there. I did, you
know what, you can have her. I got into the other
bathroom of the house and I called the police. And
the police ask him to stay out for the night. He
came back, and when he left to work, I called a
program that is for women who have been abused
and they took me there and I spent there, like, a
month.
A final PFA was entered against Father by agreement and
without admission. Father sent text messages to Mother
in violation of the terms of the April 9, 2014 PFA and was
subsequently convicted of an ICC[2] on May 7, 2014.
Father’s conviction resulted in being placed on probation
for six months in addition to other conditions, such as
undergoing a psychological evaluation and attending
domestic violence courses. Father began his counseling
services in January 2015, directly after his release from
incarceration.
In the final PFA dated May 7, 2014, Mother agreed that
Father could have supervised physical custody of [Child]
____________________________________________
2
Indirect criminal contempt.
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for three months and then after three months Father
would have unsupervised custody of [Child] every other
weekend. Father never started the three months of
supervised custody. Father testified that he was never
able to exercise supervised custody of [Child] during those
first three months because Mother would not do her part to
coordinate with the supervisor. Mother maintains that she
did her part and that it was Father that did not coordinate
with [the supervised visitation center] for supervised
custody.
Mother maintains that Father was willfully absent from
[Child’s] life. Father maintains that he was precluded from
seeing his daughter because of terms of the PFA, Mother’s
lack of coordination with the [supervised visitation center]
supervisor, and his subsequent incarceration for
approximately six months for violating his probation. The
court allowed Mother to temporarily relocate to Florida in
November 2014, pending this relocation hearing; at that
time, Father was incarcerated in Pennsylvania. Mother
testified that she wants [Child] to have a meaningful
relationship with Father, but seeks to relocate to Florida
from Pennsylvania. Mother testified that traveling to
Pennsylvania on a regular basis to allow Father to exercise
periods of custody would be a great financial hardship for
her. Similarly, Father testified that traveling to Florida
would be a great financial hardship for him.
Mother testified that living in Florida is better for her and
[Child] because Mother was able to secure two jobs in
under a month after moving to Florida-the first being a
luggage handler at Disney Resorts and the second [is] a
part-time position at Golden Corral. Mother testified that
she struggled to obtain and/or maintain comparable
employment in Lancaster County. Prior to moving to
Florida, Mother worked as a housekeeper in a hospital. In
Florida, Mother lives with [Child], maternal grandmother,
maternal step-grandfather, and Mother’s younger
[3]
brother. Both maternal grandmother and step-
____________________________________________
3
Mother’s parents and ten-year-old brother decided to move to Florida
because of the climate and maternal grandmother’s health. They moved to
(Footnote Continued Next Page)
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grandfather receive social security disability and do not
work outside of the home.
Now that Father has been released from incarceration, he
is working to regain employment and get back on his feet.
Father was unable to pay support for [Child] while he was
incarcerated, but will be able to now. Father currently
lives with his father and his father’s girlfriend. Father has
relatives in Lancaster County, none of which have had the
opportunity to form a relationship with [Child].
Prior to the start of the relocation hearing that took place
on February 24, 2015, counsel for both parties met with
the court and discussed what the scope of the hearing
[would] be. Specifically, counsel for the parties stated that
they were not in a position to present evidence for the
court to consider under a full sixteen factor, 23 Pa.C.S. §
5328(a) best interests analysis. The parties agreed before
the start of the hearing that they would like the custody
aspect of this matter to go forward to a custody
conference, which the court scheduled in its February 25,
2015 Order.
Trial Court 1925(a) Opinion, filed 4/17/15, at 3-6.
On February 25, 2015, the court denied Mother’s relocation petition.
On March 18, 2015, Mother filed a timely notice of appeal and a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2) and (b).
Mother raises the following issues for our review:
_______________________
(Footnote Continued)
Pennsylvania from Puerto Rico in 2012. Mother is twenty years old. All of
their extended family is in Florida, and Mother testified that everyone speaks
Spanish there, which made it much easier for her to get a job. She also
testified that she does not have any family in Pennsylvania to help with
childcare.
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I. IS THE TRIAL COURT ORDER OF FEBRUARY 25, 2015, A
FINAL ORDER THEREBY GRANTING THE SUPERIOR COURT
JURISDICTION OF THE APPEAL?
II. DID THE TRIAL COURT ABUSE ITS DISCRETION OR
COMMIT AN ERROR OF LAW WHEN IT FAILED TO
CONSIDER THE BEST INTEREST FACTORS AS REQUIRED
BY THE CHILD CUSTODY ACT, 23 PA.C.S. § 5328(A) IN ITS
CUSTODY ORDER?
III. DID THE TRIAL COURT ABUSE ITS DISCRETION OR
COMMIT AN ERROR OF LAW WHEN IT FAILED TO
CONSIDER ALL OF THE BEST INTEREST FACTORS UNDER
SECTION 5337(H) AND IMPROPERLY CONSIDERED ONE
FACTOR TO THE EXCLUSION OF ALL OTHERS IN ITS
DETERMINATION TO DENY MOTHER’S REQUEST TO
RELOCATE TO ORLANDO, FLORIDA[?]
IV. DID THE TRIAL COURT ABUSE ITS DISCRETION OR
COMMIT AN ERROR OF LAW WHEN IT FOUND FATHER
POSES NO RISK OF HARM DESPITE THE LACK OF ANY
EVIDENCE THAT WOULD REBUT FATHER’S PRESUMED
RISK OF HARM BASED ON HIS CRIMINAL GUILTY PLEA
FOR AN INDIRECT CRIMINAL CONTEMPT PURSUANT TO 23
PA.C.S. § 5329?
V. DID THE TRIAL COURT ABUSE ITS DISCRETION OR
COMMIT AN ERROR OF LAW WHEN IT ENTERED AN ORDER
FOR FATHER TO HAVE SUPERVISED PRIMARY CUSTODY, A
FORM OF CUSTODY NOT CONTEMPLATED UNDER THE
CUSTODY ACT?
Mother’s Brief at 9-10.
We must first address the appealability of the trial court order as it
directly implicates the jurisdiction of this Court. The trial court contends
Mother’s appeal is improper as she seeks to appeal the denial of a relocation
request prior to the entry of an appealable custody order. The opinion
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states the court scheduled a custody conference for April 20, 2015. The
docket does not reflect that such a custody conference has occurred.
On April 2, 2015, this Court ordered Mother to show cause as to why
this appeal should not be quashed as having been taken from an order that
is interlocutory and not appealable. On April 9, 2015, Mother responded to
the notice. On April 20, 2015 this Court discharged the order to show cause,
but warned Mother that the “merits panel may revisit the issue and may find
that the appeal is defective. Therefore, [Mother] should be prepared to
address the issue at oral argument if the panel or one of the parties raises
the issue at that time”. Order, filed 4/20/15, 504 MDA 2015.
Mother argues that the trial court clearly entered an order denying her
relocation petition after conducting a full hearing on the merits. She claims
the court granted her primary physical custody if she moved back to
Lancaster and concludes that the trial court’s order denying her relocation
petition is appealable. We disagree.
Primarily, we observe:
“The appealability of an order directly implicates the
jurisdiction of the court asked to review the order.”
Estate of Considine v. Wachovia Bank, 966 A.2d 1148,
1151 (Pa.Super.2009). “[T]his Court has the power to
inquire at any time, sua sponte, whether an order is
appealable.” Id.; Stanton v. Lackawanna Energy, Ltd.,
915 A.2d 668, 673 (Pa.Super.2007). Pennsylvania law
makes clear:
[A]n appeal may be taken from: (1) a final order or
an order certified as a final order (Pa.R.A.P. 341);
(2) an interlocutory order as of right (Pa.R.A.P. 311);
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(3) an interlocutory order by permission (Pa.R.A.P.
312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a
collateral order (Pa.R.A.P. 313).
Stahl v. Redcay, 897 A.2d 478, 485 (Pa.Super.2006),
appeal denied, 918 A.2d 747 (Pa.2007) (quoting Pace v.
Thomas Jefferson University Hosp., 717 A.2d 539, 540
(Pa.Super.1998) (internal citations omitted)).
In re Estate of Cella, 12 A.3d 374, 377-78 ([Pa.Super.]2010).
Pennsylvania Rule of Appellate Procedure 341 provides, in relevant
part:
Rule 341. Final Orders; Generally
(a) General rule. Except as prescribed in
subdivisions (d), and (e) of this rule, an appeal may
be taken as of right from any final order of an
administrative agency or lower court.
(b) Definition of final order. A final order is any
order that:
(1) disposes of all claims and of all parties; or
(2) is expressly defined as a final order by statute;
or
(3) is entered as a final order pursuant to subdivision
(c) of this rule.
(c) Determination of finality. When more than
one claim for relief is presented in an action, whether
as a claim, counterclaim, cross-claim, or third-party
claim ... the trial court ... may enter a final order as
to one or more but fewer than all of the claims ...
only upon an express determination that an
immediate appeal would facilitate resolution of the
entire case. Such an order becomes appealable when
entered. In the absence of such a determination and
entry of a final order, any order ... that adjudicates
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fewer than all the claims ... shall not constitute a
final order. ...
Pa.R.A.P. 341(a)–(c).
We will only consider a custody order as final and appealable 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.” Moyer v. Gresh, 904 A.2d
958, 963 (2006) (quoting G.B. v. M.M.B., 670 A.2d 714, 720
(Pa.Super.1996)).
“42 Pa.C.S. § 702 permits this Court in its discretion to entertain an
appeal of an interlocutory order if it is satisfied with the trial court’s
certification that there is 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.” Kensey v. Kensey, 877 A.2d 1284, 1289 (Pa.Super.2005).
Here, the court’s order provides, in pertinent part:
5. [Mother’s] proposed relocation to Orlando, Florida is
hereby DENIED. The Court shall issue an Opinion and
Order fully addressing the relocation and risk of harm
issues within fifteen (15) days of the date of this Order.
6. Within thirty (30) days, Mother shall return [Child] to
Lancaster County. Pending the custody conference,
custody of [Child] after she is returned to Lancaster
County shall be as follows:
a. Mother may remain with [Child] after she is returned
to Lancaster County and retain primary physical custody
of [Child] with Father to have partial physical custody of
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[Child] to be supervised by Jesus Aponte or Sally
Gonzalez as the parties agree.
b. If Mother chooses to remain in Florida, then Father,
supervised by Jesus Aponte or Sally Gonzalez, shall
have primary custody of [Child] with Mother to have
partial physical custody of [Child] as the parties agree.
7. The Court finds that Father is not a risk of harm to
[Child] so long as he completes the conditions of his
probation and, until such conditions are completed, so long
as his custody of [Child] is supervised by Jesus Aponte or
Sally Gonzalez.
8. A custody conference is hereby scheduled in this matter
for April 20, 2015 at 3:30 p.m. in conference room # 302
before custody conference officer, Jeanne Millhouse.
February 25, 2015 Order at 2-3.
At the conclusion of the relocation hearing, the court stated:
That will conclude the aspect of the relocation hearing. I
will review all of the evidence and I will have a decision out
as soon as possible so that there’s some certainty with
both of the parties. I’m not going to make any final
custody decisions… I will direct that that go to a
conference in some form or another, whether it’s from
Florida or up here. So that would be the next stage in
anything that were to happen with custody. I will make
the determinations with respect to risk of harm that are
still outstanding, so that the only thing that will be left will
be custody schedules.
N.T., 2/24/15 at 157 (emphasis added).
In this case, there is no trial court certification pursuant to 42 Pa.C.S.
§ 702. On the contrary, the trial court specifically stated that it would make
the custody determination at a later date. The court’s custody
determinations in the February 25, 2015 order are only interim as all claims
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have not been decided. Therefore, we agree with the trial court that this
appeal is interlocutory.
Because of our disposition of this preliminary matter, we will not
address Mother’s remaining issues.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2015
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