Eyer, D. v. Gelsinger, M. ( 2023 )

J-S43016-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DRAKE L. EYER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MEGAN E. GELSINGER :
:
Appellant :
:
:
v. :
:
:
TAMMY G. HAWBAKER : No. 945 MDA 2023
Appeal from the Order Entered June 29, 2023
In the Court of Common Pleas of Franklin County
Civil Division at No(s): 2022-03450
BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: NOVEMBER 29, 2023
Appellant, Megan E. Gelsinger (“Mother”), appeals from the order
entered in the Franklin County Court of Common Pleas, which granted the
petition filed by Tammy G. Hawbaker (“Paternal Grandmother”) seeking
standing to intervene in the custody action between Mother and Drake L. Eyer
(“Father”).1 We quash the appeal.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Although this appeal involves a custody action, we will use the parties’ names
in the caption “as they appeared on the record of the trial court at the time
(Footnote Continued Next Page)
J-S43016-23
In its opinion, the trial court set forth most of the relevant facts and
procedural history of this case as follows:
This case involves one child, … (DOB [in 12/19]) (“Child”)
and was initiated when Father filed a Complaint for Custody
on November 3, 2022. On December 8, 2022, we entered
a temporary order providing Mother and Father with shared
legal custody and Mother primary physical custody subject
to Father’s periods of supervised custody every Saturday for
five hours [to be supervised by Paternal Grandmother]. We
also referred the case to a custody conciliation conference.
As a result of the conciliation conference, Mother and Father
agreed to modify the December 8, 2022 Order by extending
Father’s Saturday periods of custody by one hour, granting
Mother unfettered access to documentation for Father’s
treatment records and allowing Mother to require Father to
undergo drug and alcohol testing within six hours upon her
request and at her expense. Father has suffered from
addiction, experienced a relapse in May 2022 and at the
initiation of this litigation was in intensive outpatient
treatment and a participant in Franklin County’s drug
treatment court.
Two days after the entry of the January 25, 2023 Order,
Mother filed a Petition for Special Emergency Relief averring
Father was presently incarcerated for violating probation
and in possession of drug paraphernalia. By Order dated
January 27, 2023, we granted Mother sole physical and
legal4 custody pending [an] evidentiary hearing.
4 By Order of Court dated May 11, 2023, we granted
Father’s Motion to Reconsider and granted Father and
Mother shared legal custody while maintaining all
other provisions of our January 27, 2023 Order.
____________________________________________
the appeal was taken.” Pa.R.A.P. 904(b)(1). Notably, “upon application of a
party and for cause shown, an appellate court may exercise its discretion to
use the initials of the parties in the caption based upon the sensitive nature
of the facts included in the case record and the best interest of the child.”
Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907(a). Neither party has applied to
this Court for the use of initials in the caption. Nevertheless, we will refer to
the minor child as “Child” to protect Child’s identity.
-2-
J-S43016-23
On March 16, 2023, Paternal Grandmother filed a Petition to
Intervene. Preliminary Objections were subsequently filed
and after a series of filings and the scheduling of [a] hearing,
we entered an Order at the time and date of hearing
determining the preliminary objections moot. We scheduled
a hearing on the Petition to Intervene, which was held on
June 6, 2023.
(Trial Court Opinion, filed August 3, 2023, at 2-3) (internal italics and record
citations omitted). Following the hearing, the court granted Paternal
Grandmother’s petition seeking standing to intervene by order filed June 29,
2023. Specifically, the court granted the petition pursuant to 23 Pa.C.S.A. §
5325(2) (providing that grandparents may file action for partial physical
custody or supervised physical custody where relationship with child began
either with consent of parent of child or under court order, and where parents
of child have commenced proceeding for custody and do not agree as to
whether grandparents should have custody under this section). The court also
entered a separate temporary order, granting Paternal Grandmother partial
physical custody every Saturday from 12:00 p.m. until 5:00 p.m., pending a
further hearing. On June 21, 2023, Mother filed the current appeal challenging
the court’s order granting Paternal Grandmother’s petition to intervene.2
____________________________________________
2 Mother filed a separate notice of appeal docketed at No. 889 MDA 2023,
challenging the court’s temporary custody order awarding Paternal
Grandmother partial physical custody, which this Court quashed on August
10, 2023 as interlocutory. Mother also filed an application seeking
consolidation of the current appeal and the appeal at docket No. 889 MDA
2023. Based on this Court’s quashal order, this Court dismissed the
(Footnote Continued Next Page)
-3-
J-S43016-23
Mother raises five issues for our review:
Did the court err in granting standing to the intervener
despite the fact that less intrusive options were available to
the court based on the circumstances of the case, including
simply providing that she have periods of visitation in lieu
of her son under the prevailing order which properly only
included the parents of the child as parties?
Did the court err in failing to consider the long-term
ramifications of such a drastic step of granting standing to
the subject child’s paternal grandmother, which intrudes on
a parent’s exclusive right to parent her child and additionally
allows a grandparent to be a party to this case for in excess
of fifteen years of the child’s minority?
Did the court err by failing to properly evaluate whether the
subject child had at least one fit parent and, therefore,
whether there was a need to allow the intrusion into
parenting (and negative effects thereof) that intervention
allows and causes?
Did the court err by failing to give consideration to the
animosity between Mother and the intervenor and the effect
intervention would have on the subject child?
Did the court err by improvidently entering an order
providing for the intervenor to exercise periods of custody
absent a petition pending to modify the existing order of
court setting forth custodial periods?
(Mother’s Brief at 3).
As a preliminary matter, we note that on July 18, 2023, this Court issued
Mother a rule to show cause why the current appeal should not be quashed or
____________________________________________
application seeking consolidation as moot. In the current appeal, Mother
raises one issue purporting to challenge the court’s temporary custody order.
As this Court already quashed Mother’s separate appeal from that order, we
will not give Mother’s issue concerning the order of temporary custody any
attention.
-4-
J-S43016-23
dismissed, as the order granting Paternal Grandmother’s petition to intervene
did not appear to be a final or otherwise appealable order. Mother responded
on July 24, 2023, claiming the order was appealable under the collateral order
doctrine per Pa.R.A.P. 313,3 and pursuant to K.W. v. S.L., 157 A.3d 498(Pa.Super. 2017) and K.C. v. L.A., 633 Pa. 722, 128 A.3d 774 (2015).
Recently, our Supreme Court issued its decision in J.C.D. v. A.L.R., ___
Pa. ___, ___ A.3d ___, 2023 WL 6853126 (Pa. filed Oct. 18, 2023). In that
case, the Court considered whether an order granting grandparents standing
in a custody action was immediately appealable under Rule 313. Although the
Court decided that the appellants/parents had satisfied the first and second
prongs of the collateral order doctrine, the Court concluded that parents “have
failed to satisfy the irreparability prong of the collateral order doctrine.” Id.
at *3. The Court explained: “Simply put, there is nothing about the present
case that would make the trial court’s Standing Order unreviewable on appeal
____________________________________________
3 This Court has explained:
[Rule 313] permits an immediate appeal as of right from an
otherwise interlocutory order where the appellant
demonstrates that the order appealed from meets the
following elements: (1) it is separable from and collateral to
the main cause of action; (2) the right involved is too
important to be denied review; and (3) the question
presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.
Ford-Bey v. Pro. Anesthesia Servs., 302 A.3d 789, 794 (Pa.Super. 2023).
-5-
J-S43016-23
from a final judgment in the underlying custody proceedings.” Id.4
____________________________________________
4 In so holding, the Court distinguished K.C., supra, which involved an order
denying intervention in a case. See id. at *4. Further, the Court
acknowledged that its decision “may be inconsistent” with K.W., supra, in
which this Court had concluded that a father’s appeal from an order granting
the child’s prospective adoptive parents in loco parentis standing to pursue
custody would be irreparably lost if it postponed review. Id. at *7 n.8.
Nevertheless, the J.C.D. Court declined to “disapprove of K.W. at this time”
because the parties did not address the applicability of K.W. or its continued
viability in their briefs. See id. In Justice Wecht’s concurrence, however, he
noted:
The facts of K.W. were atypical, and arguably distinguish
that case from the circumstances before us today. In K.W.,
the father was not informed of the mother’s pregnancy, nor
of the fact that she had placed the child for adoption. The
child was placed with adoptive parents before the father was
even aware of the child’s existence. The adoption agency
attempted to contact the father and was first able to do so
a month after the child’s birth. Various procedural issues
delayed the case, and the father’s preliminary objections to
standing were not finally resolved until the child was about
one year old. In permitting the interlocutory appeal, the
Superior Court “weighed the unique circumstances”
including the fact that the father “was deprived of [the child]
by a private adoption agency without the benefit of a
hearing or other due process protections” and that the court
“could not hope to fully vindicate or restore [the father’s]
rights by the time of his second appeal.” The Superior
Court’s language in holding the standing order to be
appealable on an interlocutory basis may have swept more
broadly than necessary, but it was undeniable in that case
that the father was deprived at length of his right to direct
the care, custody, and control of his child.
Those facts are very different from those of today’s case.
Here, Parents maintain custody of Children. As such, even
if our Court was bound by the Superior Court’s rationale
(which, of course, we are not), K.W. would not control.
Id. at *12-13 (J. Wecht, concurring) (internal footnotes omitted).
-6-
J-S43016-23
Instantly, we conclude that J.C.D. is dispositive of this appeal. Pursuant
to the Court’s holding in that case, Mother’s current appeal challenging the
trial court’s order granting Paternal Grandmother’s petition seeking standing
to intervene in the underlying custody action fails the third prong of the
collateral order doctrine.5 See J.C.D., supra. Mother may challenge the trial
court’s order granting Paternal Grandmother standing at the conclusion of the
custody trial and upon a final custody order. See id. Therefore, we lack
jurisdiction to consider the appeal.6 Accordingly, we quash.
Appeal quashed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/29/2023
____________________________________________
5 Mother’s reliance on K.C., supra affords her no relief, as that case involved
an order denying a petition to intervene, and not a petition granting
intervention. See J.C.D., supra. We further agree with the rationale
espoused in Justice Wecht’s concurrence, that K.W., supra is also
distinguishable from the facts of this case, where Mother presently maintains
primary physical custody of Child. Thus, K.W. also affords Mother no relief.
6 Mother makes no claim that the order granting Paternal Grandmother’s
petition to intervene is properly before us as from a final order (see Pa.R.A.P.
341), or an interlocutory order by right or permission (see Pa.R.A.P. 311,
312).
-7-