D.F. v. B.F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
B.F. :
:
Appellant :
:
: No. 2377 EDA 2019
Appeal from the Order Entered July 11, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): OC0601812
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 14, 2020
B.F. (“Father”) appeals pro se from the July 11, 2019 order granting
D.F. (“Mother”) sole legal and physical custody of their minor child, B.F. We
affirm.
B.F. was born during 2002, and was approximately seventeen years old
when the trial court entered the pertinent custody order. Mother and Father
separated in 2004, and have subsequently shared legal custody and varying
degrees of physical custody of B.F. and her older sister, who has since attained
the age of majority. During the period that is relevant to this proceeding,
Mother resided in Philadelphia and Father resided near Denver, Colorado.
The trial court summarized the pertinent procedural history as follow:
On March 13, 2018, this court awarded Father temporary
primary physical custody of minor child B.F. following protracted
hearings on August 9, 2017, and on February 20, 2018, and
reserved a final decision for additional testimony following B.F.’s
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move to Colorado due to this court’s finding that B.F. expressed
ambivalence about her preference regarding relocation. During
both hearings the undersigned judge held in camera interviews
with . . . B.F., who was nearly 16 years of age. . . . Although
this court found that B.F. seemed to be ambivalent about
relocating to Colorado, her desire to live with her older sister in
Colorado outweighed her wish to remain in Philadelphia. The court
permitted B.F. to move to Colorado effective August 1, 2018, and
permitted Father to enroll B.F. in her junior year of high school in
Colorado.
Trial Court Opinion, 9/19/19, at 5 (citations omitted).
B.F. began school in Colorado, but refused to return at the conclusion
of her spring break in Philadelphia. Following an emergency hearing on April
25, 2019, which included B.F.’s in camera explanation of her refusal, the trial
court entered a temporary order that stayed Father’s primary physical custody
in Colorado. The stay remained in effect until the final protracted custody trial
approximately two and-one-half months later. On May 8, 2019, we quashed
Father’s ensuing appeal from the interlocutory emergency order. See B.L.F.
v. D.J.F., 1091 EDA 2019 (Pa.Super. 2019) (per curiam order).
Thereafter, the trial court denied Father’s petition to participate in the
approaching custody trial by telephone, and Father neglected to appear for
the trial. After considering additional evidence, and another in camera
interview with B.F., the trial court entered a final custody order that awarded
Mother sole legal custody and sole physical custody of B.F. and granted Father
“reasonable telephonic/electronic communication with [B.F.] . . . as arranged,
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initiated by[,] and agreed by [B.F.].”1 Trial Court Opinion, 7/11/19, at 1
(capitalization omitted). This timely appeal followed.2
Instantly, Father’s Rule 1925(b) statement asserted thirty-seven
complaints. At the outset, we address whether Father’s issues are preserved
for our review. An appellant waives all matters for review where he identifies
an excessive number of issues in the concise statement. See Jones v. Jones,
878 A.2d 86 (Pa.Super. 2005) (holding that a seven-page, twenty-nine issue
statement resulted in waiver). Similarly, we may also find waiver where a
concise statement is too vague. See In re A.B., 63 A.3d 345, 350 (Pa.Super.
2013) (“When a court has to guess what issues an appellant is appealing, that
is not enough for meaningful review.”) (citation omitted).
While Rule 1925(b)(4)(iv) provides that the sheer number of issues is
not sufficient grounds to find waiver “[w]here non-redundant, non-frivolous
issues are set forth in an appropriately concise manner[,]” that concession
does not negate the requirement that the Rule 1925 statement facilitate
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1 On the same date, the trial court entered an order that discussed the
statutory best-interest factors pursuant to 23 Pa.C.S. § 5328(a) and the ten
relocation factors outlined in § 2337(h) because Father sought to exercise
primary custody of B.F. at his residence in Colorado. See D.K. v. S.P.K., 102
A.3d 467 (Pa.Super. 2014).
2 As the thirtieth day of the appeal period, August 10, 2019, was a Saturday,
the notice of appeal filed on Monday, August 12, 2019, is timely pursuant to
1 Pa.C.S. § 1908(2), which provides that the calculation of time periods omits
weekends and holidays when the last day of the period is a weekend or
holiday.
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appellate review. see also Kanter v. Epstein, 866 A.2d 394, 401 (Pa.Super.
2004) (holding that “[b]y raising an outrageous number of issues” in a Rule
1925(b) statement, an appellant impedes the trial court’s ability to prepare
an opinion addressing the issues on appeal, thereby effectively precluding
appellate review). As outlined supra, Father’s litany of irrational complaints
hinders our review.
The trial court characterized Father’s Rule 1925 statement as “six pages
of rambling, single spaced paragraphs that have nothing to do with the best
interest of [B.F.] . . . [or] the final order of July 11, 2019.” Trial Court Opinion,
4/16/18, at 2-3. As the court accurately observed, “The bulk of [Father’s]
statement . . . amounts to an attempt to smear the reputation of Philadelphia
Family Court Judges and staff with suggestions of conspiracy against [him].”
Id. at 3. The trial court determined that only four of Father’s thirty-seven
claims were preserved; specifically, two issues relating to the Pennsylvania
court’s exercise of continuing jurisdiction over the custody litigation as
opposed to Colorado; and one issue each concerning Father’s inability to
participate in the trial by telephone and the court’s alleged violation of
Pa.R.A.P. 1701 because it proceeded to trial despite Father’s appeal from the
interlocutory emergency order. The trial court cogently addressed each of
these claims in a thorough opinion that it entered on September 19, 2019.
Our review of Father’s Rule 1925(b) statement confirms the trial court’s
description. Accordingly, we conclude that, pursuant to Pa.R.A.P.
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1925(b)(4)(vii), Father waived all but the four issues that the trial court
addressed.
Moreover, Father’s brief is defective insofar as it fails to comply with
several requirements outlined in Pa.R.A.P. 2111(a)(1)-(12), and neglects to
present any lucid legal argument.3 Pursuant to Pa.R.A.P. 2101, if an
appellant’s brief is so substantially defective so as to impede appellate review,
“the appeal or other matter may be quashed or dismissed.” Furthermore,
[t]his Court is neither obliged, nor even particularly equipped, to
develop an argument for a party. To do so places the Court in the
conflicting roles of advocate and neutral arbiter. When an
appellant fails to develop his issue in an argument and fails to cite
any legal authority, the issue is waived.
Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa.Super. 2008)
(citations omitted).
Since Father is proceeding pro se, we construe his brief liberally. See
Branch Banking & Tr. v. Gesiorski, 904 A.2d 939, 942 (Pa.Super. 2006).
Nevertheless, Father’s status as a pro se litigant does not entitle him to any
special deference. Indeed, “[a]ny layperson choosing to represent [herself]
in a legal proceeding must, to some reasonable extent, assume the risk that
[her] lack of expertise and legal training will prove [her] undoing.” Id. It is
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3 Ironically, Father filed with this Court a motion to strike Mother’s brief
because Mother filed her brief seven days late and allegedly neglected to serve
a copy on the brief upon Father. As the late brief did not impede our review,
and because the record confirms that Mother filed a proof of service with this
Court on November 27, 2019, the motion is denied.
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beyond cavil that this Court will not act as appellate counsel. Smathers v.
Smathers, 670 A.2d 1159, 1160 (Pa.Super. 1996).
Instantly, Father neglected to include in his brief the order in question,
statement of questions involved, summary of argument, a separate and
distinct argument, or a certification that his brief satisfied the length
restrictions. See Rule 2111(a)(2), (4), (6), (8), and (12). More importantly,
Father did not present a comprehensible legal argument. Instead, consistent
with his marginally coherent Rule 1925(b) statement, Father alleges a bizarre,
if not imaginative, conspiracy among Philadelphia jurists to engage in, inter
alia, a multi-faceted “human trafficking enterprise,” fraud, bribery, blackmail,
and corruption.4 Father’s brief at 16-17. As these vitriolic insults clearly do
not align with three of the four issues that were preserved in Father’s Rule
1925(b) statement, they are waived. See Pa.R.A.P. 1925(b)(4)(vii) (issues
not included in concise statements are waived).
Finally, to the extent that one of Father’s assertions of a “Fraud upon
the Court” can be interpreted as implicating the trial court’s decision to
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4 The basis of the alleged grand judicial conspiracy stems from the fact that
the administrative judge that assigned the case to the trial court was a
“longtime close family friend” of Mother. Father’s brief at 6. As articulated
by Father, the administrative judge “influenced and/or bribed [the trial court]
and other officers of the court to decide this case in a manner which clearly
favored [Mother].” Father’s brief at 6. As it relates to the references to human
trafficking, Father equates the trial court’s emergency order entered on April
25, 2019, with a criminal offense. That absurd assertion warrants no further
discussion.
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schedule the final custody hearing despite Father’s then-pending appeal from
the temporary custody, that claim fails on its merits. See Father’s brief at 16.
(“[On] August 9, 2017[, the trial court] act[ed] in the complete absence of all
jurisdiction due to the pending appeal which was active at the time of [its]
decision[, and] . . . which prohibited [its] actions on this date.”).
Stated plainly, Pennsylvania Rule of Appellate Procedure 1701(b) clearly
permits a trial court to proceed on a matter notwithstanding the filing of an
appeal from a non-appealable interlocutory order. See Pa.R.A.P. 1701(b)(6)
(the trial court may “[p]roceed further in any matter in which a non-
appealable interlocutory order has been entered, notwithstanding the filing of
a notice of appeal or a petition for review of the order”). Moreover, the record
reveals that this Court quashed Father’s appeal from the interlocutory
emergency order on May 8, 2019, approximately two months before the court
convened the July 2019 custody trial. No relief is due.
Thus, because the numerous substantial defects in Father’s
noncompliant brief preclude meaningful review and the sole issue that is
arguably preserved for our consideration is baseless, we find Father failed to
provide this Court any basis to disturb the final custody order granting Mother
sole legal custody and sole physical custody of B.F.
Order affirmed. Application to strike Mother’s brief denied.
Judge McLaughlin did not participate in the consideration or decision of
this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/20
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