Cassani, E. v. Kamiak, O. ( 2023 )

J-A12003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
EMANUELE CASSANI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OLGA SOFIA KAMIAK :
:
Appellant : No. 2961 EDA 2022
Appeal from the Order Entered November 22, 2022
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2019-20404
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 12, 2023
Olga Sofia Kamiak (“Mother”) appeals pro se from the November 22,
2022 custody order concerning the parties’ four-year-old son, A.C. (“Child”).
The challenged order denied as moot the emergency petition for contempt file
by Emanuele Cassani (“Father”); denied the parties’ cross-claims to modify
the custody order; and granted Father’s request to travel with Child to Italy
in December of 2022, inter alia.1 We vacate and remand.
It is undisputed that Father is from Italy, and Mother is from Belarus.
Father initiated a divorce action in 2019, and the parties filed cross-complaints
for custody of Child that same year. The trial court issued a custody order on
January 14, 2020 (“original order”), when Child was twenty-one months old,
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1 Father did not file an appellee brief in this case.
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which awarded the parties shared legal and physical custody on an alternating
weekly basis. In the highly contentious underlying custody action, the parties
never contested the shared custody award.
Given their countries of origin, the original order included parameters
for the parties to travel internationally with Child. It required that Child have
a United States passport and that it be renewed on a timely basis. However,
the original order prohibited Father from obtaining an Italian passport for
Child. In addition, when either party desired to take an international trip with
Child, the court required that he or she “submit a proposed order to the court
which shall contain Child’s proposed travel dates, itinerary, flight information
and address while traveling [abroad]. The parent proposing travel shall give
a minimum of 45 days written notice.” Order, 1/14/20, at ¶ 9.
The ensuing procedural history is relevant to this appeal. On October
25, 2021, Mother filed a counseled petition to modify the original order,
wherein she requested, in part, that the custody schedule be modified from
Child alternating between her and Father on a weekly basis to a 2-2-3 basis,
which she averred was more suitable for the then three-year-old Child. In
addition, Mother requested that the court suspend Child’s international
traveling until he is ten years old, alleging that Father intended to abscond
with Child. Father filed an answer denying Mother’s allegations.
On November 22, 2021, Father filed a cross-petition to modify the
original order. He requested, in part, that the parties no longer be required
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to submit a proposed order for international travel and that they be mandated
to provide 30 days’ notice of proposed travel rather than 45 days’ notice.
Father also requested that the court modify the Christmas custody schedule
to accommodate his desire to travel with Child to Italy in alternating years.
The trial court scheduled a hearing on the above petitions for March 30,
2022. Pursuant to a scheduling order, on March 23, 2022, and March 25,
2022, Father and Mother, through counsel, filed their respective pre-trial
memoranda which included, in part, the names of witnesses to be called and
an analysis of the custody factors delineated in 23 Pa.C.S.A. § 5328(a). For
reasons unspecified in the record, the court held a conference and not an
evidentiary hearing on March 30, 2022, which resulted in the interim order
dated March 30, 2022 (“interim order”). The trial court docket reveals that
no record was made of the March 30, 2022 proceeding.
The interim order modified the original order by permitting either party,
when Child was in the weekly custody of the other, to exercise custody for two
hours after school until 6:00 p.m. on two separate occasions during the week
and to pick Child up from school on those occasions. With respect to Mother’s
request that the court suspend Father’s travel with Child to Italy until age ten,
the order provided that neither party shall travel with Child “until the [s]tatus
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hearing on April 13, 2022.”2 Interim Order, 3/30/22, at ¶ 6. The terms of
the original order otherwise remained in effect.
Prior to the scheduled status hearing, on a date not revealed in the
record, Father submitted a proposed order to travel with Child to Italy from
August 24, 2022, until September 7, 2022.
The trial court held the status conference with the parties’ counsel as
scheduled, during which it signed the proposed order allowing Father to travel
to Italy with Child from August 24, 2022, until September 7, 2022. The April
13, 2022 order (“final order”) also directed Mother to provide Father with
Child’s U.S. passport within fifteen days; directed Father to provide copies of
his driver’s license, green card, and passport to be kept on file with the trial
court; and it set forth the itinerary for the proposed trip. Mother timely
appealed pro se from the final order, which this Court docketed at 1012 EDA
2022.
Thereafter, the parties filed the following pleadings which gave rise to
the order which is the subject of this appeal (also referred to as “subject
order”). On June 3, 2022, Father filed an emergency petition incorporating
two requests, one for contempt of the final order and the other to modify the
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2 Mother, acting pro se, filed a notice of appeal from the interim order, which
this Court docketed at 1174 EDA 2022. By order filed on June 21, 2022, we
quashed the appeal as interlocutory.
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final order. At the time Father filed these petitions, Mother’s appeal at 1012
EDA 2022 remained pending.
Father asserted that Mother had contravened the final order by failing
to provide Child’s passport. In addition, Father requested that Child’s
two-hour visits with the noncustodial parent be eliminated. He alleged that
those visits had caused Child “extreme distress” and confusion “about who is
picking him up [from school] and where he will be staying in the evening.”
Emergency Petition to Modify, 6/3/22, at ¶ 5(b)(xii)-(xiii). Father requested
that the court modify the final order by returning to an alternating weekly
custody schedule.
On August 11, 2022, Mother filed an amended answer to Father’s
emergency petition for contempt, wherein she asserted, inter alia, that the
passport issue was moot due to this Court’s order in her appeal at 1012 EDA
2022. Indeed, in an order filed on June 22, 2022, this Court granted Mother’s
request for a stay of the final order and directed Father to post $50,000.00 as
security for Child’s return from Italy on September 7, 2022. After Father
complied with that order, this Court removed the stay on July 20, 2022, and
directed Mother to provide Child’s passport to Father no later than August 1,
2022.3 As such, Father and Child had returned to the United States from Italy
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3 This Court “ordered Father to post $50,000.00 as security, noting that he
admitted making threats in the past that he would abscond with Child to Italy,”
which would be removed when Father “informed us that he had posted
(Footnote Continued Next Page)
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by the time Mother filed her amended answer to Father’s above-described
emergency contempt petition.
On October 28, 2022, while her appeal at 1012 EDA 2022 remained
pending, Mother filed an amended answer to Father’s emergency petition for
modification of the final order and counterclaim. Mother alleged that it was in
Child’s best interest to modify the custody schedule by alternating custody
between the parties on a 2-2-3-day basis. Further, she alleged that Father,
at a time unspecified in record, had proposed another trip with Child to Italy
in December of 2022. She also renewed her request that Child’s international
travel be suspended until he is ten years old. Mother also averred that
Father’s recent trip to Italy with Child “was a dry run for Father to retain Child
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security.” Cassani v. Karniak, 289 A.3d 85, 2022 Pa. Super. Unpub. LEXIS
2762 **2-3 (Pa. Super. filed November 22, 2022) (unpublished
memorandum). We directed that “Father could move for return of security
upon Child’s return to the United States with Father on September 7, 2022.”
Id. at *3. Thereafter,
Father posted a $50,000.00 bond in the [trial] court. On July 20,
2022, this Court removed the stay of the April 13, 2022 order and
reiterated that Father could move for return of security upon
Child’s return to the United States with Father on September 7,
2022.
On September 20, 2022, Father filed an application in this Court
seeking return of security. Father averred that Child and Father
returned to the United States on September 7, 2022. Mother did
not file an answer to Father’s application. On October 31, 2022,
this Court entered an order directing return of all security posted
by Father.
Id.
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in Italy. . . .” Amended Answer and Counterclaim, 10/28/22, at ¶ 8(a)
(emphasis in original).
The court scheduled a “protracted hearing” on the above-described
petitions for November 22, 2022.4 See Order, 11/7/22. Mother timely filed
a pre-trial statement, but Father did not file the same. Critically, this hearing
again occurred off-the-record, although Mother asserts that it was conducted
via Zoom. See Mother’s Brief at 14 (unpaginated). To be clear, no transcript
or record of these proceedings or the testimony, if any, offered therein is
present in the certified record.
By order dated and entered on November 22, 2022, the trial court
dismissed Father’s emergency contempt petition as moot. Further, the court
denied the parties’ cross-petitions to modify the final order. Moreover, the
court granted Father’s new request to travel with Child to Italy in December
of 2022. The order provided that Child’s “passport may be retrieved from the
[c]ourt on Monday, December 19, 2022 by a [c]ourt [o]rder. Thereafter, said
passport shall be returned to the [c]ourt upon completion of the trip. The
parties shall have the passport of [Child] renewed before February 14, 2023.”
Order, 11/22/22, at ¶ 5.
It is important to note that, on the same date the trial court issued the
subject order, this Court filed its memorandum in Mother’s appeal at 1012
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4 Although the order listed the hearing as a “protracted hearing,” it scheduled
the hearing to commence at 1:00 p.m. for “1 hour.” Order, 11/7/22.
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EDA 2022, wherein we ordered that the appeal be dismissed as moot. See
Cassani, supra. The panel concluded, “Mother’s arguments boil down to the
thesis that the [trial c]ourt’s order was an abuse of discretion because Father
intended to abscond to Italy with Child and never return. Father, however,
returned from Italy to the United States with Child on September 7, 2022, the
date specified in the [final] order.” Id.
On November 23, 2022, Mother, acting pro se, filed a notice of appeal
from the trial court’s November 22, 2022 order, along with a concise
statement of errors complained of on appeal. On December 6, 2022, Mother
filed in the trial court a motion to stay the subject order, which the court
granted by order entered on December 13, 2022. Specifically, the order
provided, “the order of November 22, 2022 is stayed pending disposition of
the appeal [before the Superior Court] docketed at no. 2961 EDA 2022 [the
instant appeal].” See Order, 12/13/22.
On December 19, 2022, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a), wherein it asked this Court to vacate the subject order and
remand the case on the basis that it lacked jurisdiction over the subject matter
pursuant to Pa.R.A.P. 1701 (Effect of Appeal Generally).
On appeal, Mother raises eight issues for review, as follows.5
I. Has the trial court erred and/or abused its discretion by
ignoring Pa.R.A.P. 1701, which states, inter alia, “Except as
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5 We have re-ordered Mother’s issues in her statement of questions involved
in her brief for ease of disposition.
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otherwise prescribed by these rules, after an appeal is taken
or review of a quasi-judicial order is sought, the trial court
or other government unit may no longer proceed further in
the matter,” whereas in this case, the court to deny the fact
that the custody matters under docket no. 1012 EDA 2022
have not been relinquished/remitted and the record was
scheduled to be remitted on December 22, 2022, and still
proceeded with the November 22, 2022 hearing?
II. Has the trial court erred and/or abused its discretion by
failing to consider the alternative [to Child going to Italy in
December of 2022]: the visits with the paternal relatives to
visit Child in the United States, given Mother’s concern of
parental abduction to Italy, and not considering Mother’s
New Year’s Eve 2022 and New Year’s Day 2023 [custodial
award and her planned] celebration with Child?
III. Has the trial court erred and/or abused its discretion by
ignoring the fact that Father failed to submit the required
pretrial statement but still used exhibits during the hearing
in order to justify his suggested travel to Italy in December
2022?
IV. Has the trial court erred and/or abused its discretion by
ignoring any and all requests for relief in the amended
answers with counterclaim and pretrial statement as
requested relief was in Child’s best interest pursuant to 23
Pa.C.S.A. § 5328(a)?
V. Has the trial court erred and/or abused its discretion by
issuing the subject order which was contrary to the record
and testimony of the parties at the Zoom hearing and
contrary to the best interest of Child pursuant to 23
Pa.C.S.A. § 5328(a)?
VI. Has the trial court erred and/or abused its discretion by not
allowing ample time between the conference scheduled on
November 7, 2022, and a one-hour “protracted hearing” via
Zoom call scheduled on November 22, 2022 to allow Mother
to adequately prepare and subpoena appropriate witnesses
for the hearing?
VII. Has the trial court committed an error of law and/or abuse
of discretion by providing that it “resolved any outstanding
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issues,” which contradicts the court’s statements at the
hearing of taking under advisement requests and changes
to custody order provisions requested in Mother’s
counterclaim and pretrial statement?
VIII. Has the trial court violated Pa.R.C.P. 1915.10(b)(2) by
ignoring Mother’s raised concerns of Child’s risk of
international abduction?
Mother’s Brief at 1-2 (unpaginated) (cleaned up).6
In her first issue, Mother, like the trial court, requests that this Court
vacate the subject order and remand the case. Specifically, she asserts that
by appealing the final order to this Court, docketed at 1012 EDA 2022, the
trial court was divested of original jurisdiction to issue the subject order.
Further, Mother asserts that, inasmuch as the record at 1012 EDA 2022 was
not remanded, the trial court’s jurisdiction over the final order had not
revested on November 22, 2022. Id. at 7-8 (unpaginated). We disagree.
It is well-settled that the “lack of subject-matter jurisdiction can never
be waived; it may be raised at any stage in the proceedings by the parties
or by a court on its own motion.” Commonwealth v. Harris, 230 A.3d 1124,
1126 (Pa. Super. 2020) (emphasis in original) (citation omitted). Further,
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6 With respect to Mother’s eighth issue, she did not assert an error regarding
it in her concise statement of errors complained of on appeal. Therefore,
Mother’s eighth issue is waived. See In re M.Z.T.M.W., 163 A.3d 462, 466
(Pa. Super. 2017) (citing City of Philadelphia v. Lerner, 151 A.3d 1020,
1024 (Pa. 2016)) (“With respect to issues not included in a concise statement,
our Supreme Court has instructed that this Court has no discretion in choosing
whether to find waiver. Waiver is mandatory, and this Court may not craft ad
hoc exceptions or engage in selective enforcement.”).
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“[j]urisdiction is purely a question of law; the appellate standard of review
is de novo, and the scope of review plenary.” Id. (citation omitted).
This Court has explained:
Under Pennsylvania Rule of Appellate Procedure 1701(a), “the
filing of a notice of appeal divests the trial court of
jurisdiction.” Commonwealth v. Cooper, 611 Pa. 437, 27 A.3d
994, 1005 (Pa. 2011). Except in situations not applicable
here, Rule 1701(a) dictates that, “after an appeal is taken . . . the
trial court . . . may no longer proceed further in the
matter.” Pa.R.A.P. 1701.
...
A Superior Court decision and order of remand with instructions,
. . . does not automatically and immediately revest a trial court
with jurisdiction, nothwithstanding this Court’s use of the phrase
“jurisdiction relinquished” in the decision. Procedurally, our
decisions are not necessarily the final word on appeal. Thus, our
phraseology is actually shorthand for, “jurisdiction relinquished, if
and when remand becomes appropriate by an operation of law.”
Regarding the timing of a remand to a lower court, the appellate
rules provide, “Remand is stayed until disposition of: (1) an
application for reargument; (2) any other application affecting the
order; or (3) a petition for allowance of appeal from the order.
The court possessed of the record shall remand 30 days after
either the entry of a final order or the disposition of all
post-decision applications, whichever is later.” Pa.R.A.P. 2572(b).
We have construed Appellate Rule 2572 as setting the earliest
possible date for remanding a record to the trial court. “Quite
simply, the prothonotary may remand the record any time after
thirty days have passed from the Superior Court's
judgment.” Commonwealth v. Sisneros, 692 A.2d 1105, 1109
(Pa. Super. 1997).
Harris, 230 A.3d at 1126-1127 (emphasis in original).
Instantly, it is undisputed that this Court filed its memorandum in 1012
EDA 2022 on November 22, 2022, the same date that the trial court held the
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Zoom hearing and issued the subject order. As such, the record had not been
remanded on November 22, 2022. See Harris, supra; see also Pa.R.A.P.
2572. However, we disagree that the prior appeal divested the trial court of
jurisdiction with respect to the subject order.
The Rule provides, in relevant part:
Rule 1701. Effect of Appeal Generally
(a) General rule.-- Except as otherwise prescribed by these
rules, after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may no longer
proceed further in the matter.
...
(c) Limited to matters in dispute.-- Where only a particular
item, claim, or assessment adjudged in the matter is
involved in an appeal, or in a petition for review proceeding
relating to a quasijudicial order, the appeal or petition for review
proceeding shall operate to prevent the trial court or other
government unit from proceeding further with only such
item, claim, or assessment, unless otherwise ordered by the trial
court or other government unit or by the appellate court or a judge
thereof as necessary to preserve the rights of the appellant.
...
Pa.R.A.P. 1701(a), (c) (emphasis added).
As stated above, the panel in Mother’s appeal at 1012 EDA 2022
determined that the sole matter in dispute was whether the trial court abused
its discretion by permitting Father to travel to Italy with Child from August 24,
2022, to September 7, 2022, based on her allegation that Father intended to
abscond to Italy with Child and never return. See Cassani, supra. Because
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Father had returned from Italy to the United States with Child on September
7, 2022, the panel dismissed that appeal as moot. Id.
However, on November 22, 2022, the trial court needed to resolve
Father’s new proposal to travel with Child to Italy again in December of 2022.
In addition, the trial court needed to resolve, inter alia, the parties’ dispute
regarding which custody schedule was best for Child, alternating between
Mother and Father on a 2-2-3 basis or on weekly basis. Therefore, the issues
before the trial court were different than those on appeal at 1012 EDA 2022,
and the court was not divested of jurisdiction to rule on them. We conclude
Mother’s first claim is without merit.7
Having concluded that the trial court was not divested of jurisdiction in
the underlying matter, we now turn to Mother’s substantive claims. In her
second issue, Mother asks this Court to consider whether the trial court abused
its discretion by granting Father’s proposed trip to Italy with Child again in
December of 2022, bearing in mind her allegation that he still planned to
abscond with Child. In her third issue, Mother requests that we review
whether the court abused its discretion by permitting Father to introduce
exhibits in support of his proposed trip during the November 22, 2022 hearing.
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7 It is important to note that, unlike the procedural posture in Mother’s appeal
at 1012 EDA 2022, the trial court stayed the subject order on December 13,
2022, and there is no evidence in the record that Father’s proposed trip to
Italy with Child in December of 2022 occurred. Therefore, the instant appeal
is not moot.
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In her fourth and fifth issues, Mother requests that we review whether the
court abused its discretion in denying her request for Child’s custody schedule
to alternate on a 2-2-3-day basis. In her sixth and seventh issues, Mother
questions whether the court permitted her to present her witnesses in support
of her allegations.
Generally, these claims implicate the trial court’s November 22, 2022
order, which concerned various aspects of the parties’ custody of Child. Our
scope and standard of review in child custody matters is well-established.
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it. . . . However, this broad
scope of review does not vest in the reviewing court the
duty or the privilege of making its own independent
determination. . . . Thus, an appellate court is empowered
to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may
not interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings;
and thus, represent a gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
(quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
2001)). Moreover,
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
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R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.
2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).
As the foregoing precedent makes clear, our principal responsibility in
the context of custody matters is to ensure that the trial court’s findings and
rulings are supported by competent evidence. Id. Our ability to do so,
however, is largely dependent upon the state of the certified record. Instantly,
the incomplete nature of the certified record hamstrings our ability to conduct
our mandated review. Specifically, the November 22, 2022 hearing, which
immediately preceded the trial court’s entry of the underlying order in this
appeal, was conducted as an off-the-record video conference. As detailed
above, we discern that no record of these proceedings, or the evidence and
testimony adduced therein, was created by the trial court.
Because the subject hearing was inexplicably conducted off the record,
we are unable adequately to review Mother’s second through seventh issues
on appeal. Upon thorough review of Mother’s arguments, the parties’
pleadings, and the court’s orders in the certified record, there is no indication
that the trial court held an appropriate evidentiary hearing. Furthermore, we
cannot assess the findings of the trial court to ensure that its determinations
are supported by competent evidence.
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Pennsylvania Rule of Appellate Procedure 1926(a) provides that, “[i]f
any difference arises as to whether the record truly discloses what occurred
in the trial court, the difference shall be submitted to and settled by that court
after notice to the parties and opportunity for objection, and the record made
to conform to the truth.” Pa.R.A.P. 1926(a). In past instances, this Court has
relied upon Rule 1926 to vacate and remand for further proceedings due to
the incompleteness of records created in the court below. See Supko v.
Monoskey, 461 A.2d 253, 257-258 (Pa. Super. 1983) (vacating a purported
custody order and remanding for further proceedings where an “incomplete”
record hampered this Court’s ability to conduct meaningful appellate review).
Accordingly, we vacate the November 22, 2022 custody order and
remand the case to the trial court to schedule promptly a full evidentiary
hearing of the parties’ cross-petitions to modify. On remand, we direct that
the trial court prohibit Father from international travel with Child prior to the
full evidentiary hearing and the court’s new custody order arising therefrom.8
Order vacated. Appellant’s Application for Relief denied as moot. Case
remanded. Jurisdiction relinquished.
Judge McLaughlin joins this Memorandum.
Judge Nichols files a Dissenting Memorandum.
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8 Mother filed pro se an application requesting that this Court “take into
consideration that transcripts are unavailable” for review. Application for
Relief, 5/12/23, at 1. Based on this disposition, Mother’s application is moot.
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Date: 10/12/2023
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