Johnson, N. v. Page, D. ( 2021 )

J-A16031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NATHANIEL D. JOHNSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESIREE E. PAGE :
:
Appellant : No. 377 MDA 2021
Appeal from the Order Entered February 23, 2021
In the Court of Common Pleas of York County Civil Division at No(s):
2015-FC-001144-03
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 29, 2021
Appellant, D.E.P. (“Mother”), files this appeal, pro se, from the custody
order dated January 25, 2021, and entered February 23, 2021, in the Court
of Common Pleas of York County, with respect to N.D.J.’s (“Father”) appeal of
the parent coordinator’s recommendations in relation to custody of their three
minor children (collectively, the “Children”). After a careful review, we affirm.
The trial court has set forth the relevant facts and procedural history, in
part, as follows:
[Father and Mother] are the natural parents of A.J.[,] born
in February of 2010, R.J.[,] born in January of 2011, and L.J.[,]
born in May of 2014. This case represents six years of extensive
litigious matters. The parties separated in 2015. From 2015
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* Former Justice specially assigned to the Superior Court.
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through 2019, four final custody orders were entered. . . .[1] In
2020, after the reinstatement of a Parent Coordinator and
submission of the Parent Coordinator’s recommendation, Father
filed a Petition to Appeal the Parent Coordinator’s
Recommendation on July 27, 2020. [2] On August 3, 2020, Mother
filed a Response to Father’s Petition. Accordingly, a hearing was
scheduled on August 6, 2020. On August 18, 2020, this case was
reassigned to [the trial court]. On September 15, 2020, [the trial]
[c]ourt held a hearing in which Mother orally requested that th[e]
[trial] judge recuse himself. During this hearing, [the trial] [c]ourt
issued a temporary order on extracurricular activities and deferred
ruling on the recusal matter to a later date. . . .On September 16,
2020, [the trial] [c]ourt issued an Order Denying Mother’s Oral
Motion for Recusal. Subsequently, another hearing was scheduled
for October 26, 2020. On October 26, 2020, [the trial] [c]ourt
held a hearing, however, after hearing hours of testimony, [the
trial] [c]ourt continued the hearing to December 22, 2020, as well
as held a hearing on January 25, 2021. . . .[3]
Trial Court Opinion (“T.C.O.”), 4/15/21, at 1-2 (citations to record omitted)
(footnotes added).
By order dated January 25, 2021, and entered February 23, 2021, the
trial court awarded Father sole legal custody as to decisions relating to the
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1 Pursuant to the order dated September 4, 2019, and entered September 5,
2019, the trial court awarded the parties shared legal custody, with Father to
have sole legal custody for the purpose of enrolling the Children in counseling.
Further, as to physical custody, the trial court granted Father primary physical
custody and Mother partial physical custody. Specifically, Mother was awarded
physical custody every Thursday at 6:00 p.m. to Friday at 6:00 p.m., as well
as every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. A
panel of this Court affirmed this order on appeal. N.D.J. v. D.E.J., 237 A.3d
428 (Pa.Super. 2020) (unpublished memorandum) (filed May 11,
2020), appeal denied, 237 A.3d 963 (Pa. 2020).
2 Father’s challenge related to provisions as to the Children’s extracurricular
activities and therapist.
3 Both Mother and Father were present at all referenced hearings.Notably,
Father was represented by counsel; however, Mother appeared pro se.
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Children’s activities, including but not limited to: medical, dental,
psychological, therapeutic, educational, and extracurricular activities. The trial
court further ordered that Mother and Father may both attend the Children’s
extracurricular activities.
Moreover, the trial court ordered that Mother’s weekday evening
custody occur on Monday evening, but that she may select a different evening
with 24-hour notice to Father due to extracurricular activities. Finally, the trial
court directed that Sheila King-Miller remain the Children’s therapist.
Thereafter, on March 22, 2021, Mother filed a timely notice of appeal
pro se,4 as well as a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother indicates she is raising the following issues:
1. Did the trial court err as a matter of law and abuse[] its
discretion in entering a final custody order awarding [F]ather “sole
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4 It is well-settled that “[a]n appeal lies only from a final order, unless
permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471
(Pa.Super. 2013). Generally, a final order is one that disposes of all claims
and all parties. See Pa.R.A.P. 341(b).; G.B. v. M.M.B., 670 A.2d 714, 715
(Pa.Super. 1996) (en banc) (holding that “a custody order will be considered
final and appealable only after the trial court has concluded its hearings on
the merits and the resultant order resolves the pending custody claims
between the parties.”). Instantly, while the order in question schedules a
subsequent follow-up hearing for testimony of the Children’s therapist
regarding new incidents raised by Mother and/or Stepfather, we observe that
the trial court indicates that the order is a final order relative to the parent
coordinator’s recommendations.
We observe that Mother additionally filed an appeal on April 21, 2021,
as to the subsequent order dated March 15, 2021, and entered March 17,
2021, which ratified and confirmed its prior orders. On May 13, 2021, this
Court quashed this appeal, docketed at 504 MDA 2021, as untimely.
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decision making, legal custody, and he will be the sole one to
make all decisions relative to all three children and their activities
including but not limited to: medical, dental, psychological,
therapeutic, educational, and extracurricular activities?”
2. Did the trial court err as a matter of law and abuse[] its
discretion in ordering Sheila King-Miller from TrueNorth Wellness
to continue to provide therapy for the children?
3. Did the trial court err as a matter of law and abuse[] its
discretion in failing to disqualify/recuse himself and allow for a
detailed evidentiary hearing on the full scope of the matter
regarding [Mother]’s request for disqualification and production of
evidence during the initial Parent Coordinator appeal hearing
dated [September 15, 2020]? Especially after Judge Andrea
Marceca Strong, who has [s]upervisor [sic] authority over Judge
N. Christopher Menges, dismissed herself from this case after
personally retaliating against [Mother] when [Mother] appeared
before her in a protection from abuse hearing and simultaneously
reassigned this case to Judge N. Christopher Menges?
4. Did the trial court err as a matter of law and abuse[] its
discretion in relitigating the matter of [extracurricular] activities
that was already decided by the trial court in the custody order
from December 2, 2019, and for punishing [M]other for following
this court order by removing her legal custody of her children in a
Parent Coordinator appeal hearing?
5. Did the trial court err as a matter of law and abuse[] its
discretion in not allowing considerable evidence to support the fact
the children are suffering and not doing well in [F]ather’s custodial
care[?] The trial court, in fact, refused to view video evidence
that would have proven [F]ather’s testimony to not be credible
and further misinformed [M]other as to the proper procedure for
submission of video evidence as a [pro se] litigant[.]
6. Did the trial court demonstrate bias, prejudice, partiality, and
ill[-]will in not allowing [Mother] to speak, not allowing her to
provide a full opening statement to lay the foundation of her
position regarding the Parent Coordinator’s recommendations
(numerous hearings commenced before she was actually allowed
to speak and present her own testimony on the matter), giving
numerous temporary orders without hearing [M]other’s full
testimony on the matter, not accepting nor liking her answers
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when asking her questions? Did the trial court continually
interrupt Mother in the [January 25, 2021,] hearing when she was
finally allowed to testify and only allowed her a very brief amount
of time compared to [F]ather who had hours of testimony[?] Did
the judge also narrow the scope of [M]other’s testimony but
allowed [F]ather to testify on numerous matters outside of the
scope of [Father]’s Parent Coordinator Appeal?
7. Did the trial court err as a matter of law and abuse[] its
discretion in applying [res judicata] to a Parent Coordinator Appeal
hearing while treating this type of hearing as if it were an actual
custody trial? Did the trial court not allow a full scope of evidence
to be presented where physical or legal custody would, by law, be
properly litigated and determined according to the 16 custody
factors[,] as well as the rights of each litigant to hire [f]orensic
[e]valuators to provide expert reports and expert testimony on
the full scope of evidence that has previously never been allowed
to be presented in Judge Andrea Marceca Strong’s courtroom?
This is necessary in order to properly litigate the overall facts of
this case should legal or physical custody determinations take
place.
8. Did the trial court abuse its discretion in starting all hearings at
least fifteen minutes late?
Mother’s Brief at 2-4 (Table of Contents).5
Initially, prior to addressing the merits of Mother’s appeal and any issues
raised, we determine whether the issues have been properly preserved for our
review. We note Father contends Mother has waived all appellate issues due
to the deficiencies of her appellate brief.
Pennsylvania Rule of Appellate Procedure 2111 relevantly provides the
following:
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5 As discussed in depth below, Mother did not include in her brief a “Statement
of Questions Involved.” Rather, she set forth a list of issues in the Table of
Contents section of her brief.
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Rule 2111. Brief of the Appellant
(a) General rule.--The brief of the appellant, except as otherwise
prescribed by these rules, shall consist of the following matters,
separately and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence, if
applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief
sought.
(10) The opinions and pleadings specified in
Subdivisions (b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
errors complained of on appeal, filed with the trial
court pursuant to Rule 1925(b), or an averment that
no order requiring a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) was
entered.
Pa.R.A.P. 2111 (bold in original).
As to the “Statement of Questions Involved,” Pennsylvania Rule of
Appellate Procedure 2116 further states, in part:
Rule 2116. Statement of Questions Involved.
(a) General rule.—The statement of the questions involved
must state concisely the issues to be resolved, expressed in the
terms and circumstances of the case but without unnecessary
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detail. The statement will be deemed to include every subsidiary
question fairly comprised therein. No question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby. Each question shall be followed by an answer
stating simply whether the court or government unit agreed,
disagreed, did not answer, or did not address the question. If a
qualified answer was given to the question, appellant shall indicate
the nature of the qualification, or if the question was not answered
or addressed and the record shows the reason for such failure, the
reason shall be stated briefly in each instance without quoting the
court or government unit below.
Pa.R.A.P. 2116 (bold in original).
In the case sub judice, Mother’s appellate brief fails to contain a proper
“Statement of Questions Involved” as required by our rules of appellate
procedure. See Pa.R.A.P. 2111(a)(4); Pa.R.A.P. 2116(a). This Court has held
that a failure to preserve issues by raising them both in the Pa.R.A.P. 1925
Concise Statement of Errors Complained of on Appeal, as well as the
“Statement of Questions Involved” portion of the appellate brief, results in
waiver of those issues. See Krebs v. United Refining Co., 893 A.2d 776,
797 (Pa.Super. 2006) (stating that we will not ordinarily consider any issue if
it has not been set forth in or suggested by an appellate brief’s statement of
questions involved, Pa.R.A.P. 2116(a), and concise statement). As Mother’s
brief lacks a “Statement of Questions Involved,” as required by Pa.R.A.P.
2116, Mother has waived her issues.6
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6 Further, even if we considered the list of issues presented in the Table of
Contents section of Mother’s brief in lieu of a “Statement of Questions
Involved,” we note Mother has neither stated the issues concisely nor
expressed the issues in the terms and circumstances of the case without
unnecessary detail. See Pa.R.A.P. 2116.
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Furthermore, Mother has failed to set forth any binding authority in the
Argument section of her brief. “The failure to develop an adequate argument
in an appellate brief may result in waiver of the claim under Pa.R.A.P. 2119.”
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007) (en
banc) (citation omitted). “[A]rguments which are not appropriately developed
are waived. Arguments not appropriately developed include those where the
party has failed to cite any authority in support of a contention.” Lackner v.
Glosser, 892 A.2d 21, 29–30 (Pa.Super. 2006) (citations omitted). See
Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa.Super. 2006) (holding a
failure to argue and to cite any authority supporting an argument constitutes
a waiver of issues on appeal).
Here, Mother has failed to cite, discuss, or link the facts of the case to
any applicable law. Thus, her issues are waived on this basis, as well. See
id.We recognize that Mother is proceeding pro se in this matter.
[However,] [w]hile this Court is willing to liberally construe
materials filed by a pro se litigant, we note that [an] appellant is
not entitled to any particular advantage because she lacks legal
training. As our [S]upreme [C]ourt has explained, any 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.
Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa.Super. 1996) (quotation
marks and quotation omitted) (some brackets in original).
Accordingly, for the foregoing reasons, we conclude Mother has waived
all issues on appeal. We, therefore, affirm the order of the trial court on this
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basis.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2021
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7 See In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007)
(stating when an appellant has waived her issues on appeal, this Court should
affirm the decision of the trial court rather than quash the appeal).
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