C.B.W. v. D.M.W. Appeal of: D.M.W. ( 2016 )

J-S22020-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
C.B.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
D.M.W. :
:
Appeal of: D.M.W. : No. 1831 MDA 2015
Appeal from the Order Entered September 14, 2015,
in the Court of Common Pleas of Schuylkill County,
Civil Division, at No(s): S-183-2008
BEFORE: MUNDY, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 13, 2016
D.M.W. (Mother) appeals from the order entered September 14, 2015,
which modified provisions of a prior custody order entered with respect to
O.W. and W.W. (collectively, Children). Upon review, we affirm.1
Mother and C.B.W. (Father) are the natural parents of Children, both
of whom were born during the parties’ marriage. O.W. was born in 2003,
and W.W. was born in 2005. The parties divorced in 2008. The trial court
entered a custody order on May 25, 2011, which provided the following, in
1
Father has filed a motion to dismiss this appeal. Father sets forth several
reasons in his motion, including Mother’s failure to file timely a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i); her failure to request and pay timely for the hearing
transcript; and her failure to file timely a docketing statement with this
Court. Motion to Dismiss Appeal, 12/7/2015, at 1-2 (unnumbered). In light
of our disposition in this case, infra, we deny Father’s motion to dismiss this
appeal.
*Retired Senior Judge assigned to the Superior Court.
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relevant part. Mother and Father would exercise shared legal custody, and
Mother would have primary physical custody of Children. Father would
exercise periods of partial custody based upon his work schedule. Father, a
police officer, did not work consistent hours or days.
On January 5, 2015, Father filed a petition for modification of the
custody order. The trial court conducted hearings on September 2 and 10,
2015. On September 14, 2015, the trial court entered an order modifying
the physical custody order.
Both Father and Mother filed petitions for reconsideration of this order.
On October 7, 2015, the trial court entered an order scheduling a hearing on
the petitions for reconsideration for November 23, 2015. On October 14,
2015, Mother timely filed a notice of appeal.2 On October 26, 2015, the trial
court entered an opinion stating that it “agrees with the parties that the
matter should be remanded to [the trial court] in light of the [p]etitions for
[r]econsideration already filed by the parties.” Trial Court Order,
10/26/2015, at 2. Then, the trial court cancelled the hearing on the
petitions for reconsideration, as it was awaiting “return of the file from the
Superior Court.” Trial Court Order, 11/9/2015.
2
Mother did not file a concise statement of errors complained of on appeal
along with her appeal as required in this Children’s Fast Track case by
Pa.R.A.P 1925(a)(2)(i). See Pa.R.A.P. 1925(a)(2)(i) (“The concise statement
of errors complained of on appeal shall be filed and served with the notice of
appeal.”).
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On appeal, Mother argues, inter alia, that the trial court erred by “not
making a finding on the record nor [authoring] an opinion when addressing
Father’s petition for modification.” Mother’s Brief at 16. Although it appears
Mother may indeed be correct,3 we are constrained for the following reasons
to conclude that Mother has waived all issues on appeal.
On December 7, 2015, this Court entered an order requiring Mother to
file a concise statement in both the trial court and this Court, as well as
serve a copy on the trial judge, by December 17, 2015. That order provided
that “[f]ailure of [Mother] to comply with this Order by December 17,
2015 shall result in waiver and/or dismissal of the appeal without
further notice.” Order, 12/7/2015 (emphasis in original).
3
“In ordering any form of custody, the court shall determine the best
interest of the child by considering all relevant factors[.]” 23 Pa.C.S.
§ 5328(a). The statute goes on to list the 16 factors that the trial court
must consider. See J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)
(“All of the factors listed in section 5328(a) are required to be considered by
the trial court when entering a custody order.”) (citation omitted; emphasis
in original). Moreover, the trial court must “delineate the reasons for its
decision when making an award of custody either on the record or in a
written opinion.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa. Super. 2014). “A
trial court’s failure to place its reasoning regarding the § 5328(a) factors on
the record or in a written opinion is an error of law.” Id. (quoting J.R.M., 33
A.3d at 652). Additionally, “the trial court [must] set forth its mandatory
assessment of the sixteen factors prior to the deadline by which a
litigant must file a notice of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa.
Super. 2013) (emphasis added).
Instantly, the record does not reveal that the trial court considered
any of the 16 custody factors before entering this custody order. Moreover,
the trial court did not write an opinion with its reasoning prior to the thirty-
day period in which Mother had to file her notice of appeal.
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Mother filed her concise statement in this Court on December 18,
2015. Accordingly, this Court issued an interim order, which provided in
relevant part: “Appellant is directed to file with the Prothonotary of this
Court, no later than January 4, 2016, a date-stamped copy of her Concise
Statement of Errors Complained of on Appeal, indicating the date it was filed
of record in the trial court[.]” Interim Order, 12/24/2015.
On January 4, 2016, Mother responded averring that she served the
concise statement on the trial judge on December 17, 2015. Mother also
states that her concise statement was “originally rejected by the
Prothonotary of the Court of Common Pleas … because the file was sent to
the Superior Court.” Mother’s Response to Order of Court Dated December
24, 2015 at ¶ 1. However, she does not indicate on what date the
Prothonotary rejected her concise statement. Additionally, she provides no
proof that she did in fact file or attempt to file her concise statement with
either this Court or the trial court on December 17, 2015.4 Based on the
foregoing, we cannot conclude that Mother filed her concise statement on
December 17, 2015 in compliance with this Court’s directive. Accordingly,
Mother has waived her issues on appeal. See J.M.R. v. J.M., 1 A.3d 902,
907 (Pa. Super. 2010) (“[W]hen an appellant … fails to comply with a
4
Mother claims she served the trial judge personally on December 17, 2015.
However, even if this is true, it does not substitute for filing. “If an appellant
does not comply with an order to file a Rule 1925(b) statement, all issues on
appeal are waived—even if the Rule 1925(b) statement was served on the
trial judge….” In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007)
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directive from this Court to file a Concise Statement, any claims on appeal
shall be deemed waived pursuant to [Commonwealth v. Castillo, 888 A.2d
775 (Pa. 2005).]”). Because Mother has waived all issues on appeal, we
affirm the order of the trial court. See, e.g., Moses Taylor Hosp. v. White,
799 A.2d 802 (Pa. Super. 2002) (affirming order of trial court where
appellant has waived all issues on appeal).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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