N.S.G. v. C.L.O.

J-A09012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.S.G. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
C.L.O.
Appellee No. 1332 MDA 2016
Appeal from the Order Entered July 7, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2011-CV-4775-CU
BEFORE: SHOGAN, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JUNE 09, 2017
N.S.G. (“Father”) appeals pro se from the July 7, 2016 amended order
directing C.L.O. (“Mother”) to make the parties’ then five-year-old daughter,
E.G. (“Child”), available for Father’s one-week vacation pursuant to the
existing custody order from July 16, 2016 at 9:00 a.m. to July 23, 2016 at
9:00 a.m. In addition, the order directed Father to advise Mother of his
destination with Child during the aforesaid vacation period at least two hours
before leaving Dauphin County with Child. Finally, the order directed that
Child shall wear a “Gizmo”1 at all times during Father’s aforesaid vacation
period.2 Upon careful review, we quash the appeal.
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1
The trial court described a Gizmo as “a mobile device with a small screen
that can be worn like a watch and which allows the user to call and receive
(Footnote Continued Next Page)
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This appeal arises from the petition for enforcement of the custody
order filed by Father on May 24, 2016. In its opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), the trial court explained
as follows.
In his petition, [F]ather sought a court order directing that
[M]other make the child available to him for his one-week of
vacation per calendar year as he is permitted under the custody
order. He planned his vacation with the child for July 16 through
July 23, 2016, and was concerned [M]other would not make the
child available for his vacation, asserting she had twice
previously failed to make the child available for his vacation. He
also alleged [M]other was demanding he provide her details of
his vacation itinerary not required under the custody order.
As a matter of background, the custody order in effect in this
matter was initially issued by the Hon. Scott Evans [on]
November 17, 2011, as amended by his orders of April 29, 2013
and November 25, 2014. Under the terms of the orders,
[F]ather was generally granted partial physical custody during
alternating weekends commencing Saturday mornings through
Sunday evenings plus one overnight on alternating weeks.
Mother was granted primary physical custody for all other
periods. The most recent order issued by Judge Evans
(November 25, 2014) rejected [F]ather’s request for equally split
physical custody and also granted [M]other sole legal custody to
make all decisions regarding child’s education due to [F]ather’s
history of harassing the child’s daycare providers. Father filed
_______________________
(Footnote Continued)
calls and to send and receive messages to and from a limited number of
contacts. It can also identify the user’s location to an authorized person.”
Trial Court Opinion, 8/25/16, at 3 n. 3.
2
The subject order amended the original order, also dated July 7, 2016, by
omitting the language “by agreement.” In all other respects, the amended
order is identical to the original order.
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an appeal from that order [and] the Superior Court . . .
affirm[ed] Judge Evans’ order.[3] . . .
On April 10, 2015, while [F]ather’s custody appeal was still
pending [in] the Superior Court, [F]ather filed a contempt
petition and motion seeking to modify the existing custody
order, again seeking equal physical custody. Since his motion
sought the exact type of relief sought by [F]ather in his appeal
to the Superior Court, [the trial court] was unable to rule on his
custody modification. See Pa.R.A.P. 1701(a) (prohibiting the
lower court from proceeding “in the matter” where an appeal is
taken).
Proceedings on [F]ather’s contempt petition proceeded,
however, since the many issues he raised were unrelated to his
pending appeal.[4] See Pa.R.A.P. 1701(c) (permitting lower
court to adjudicate collateral claims or claims unrelated to
matters on appeal). One of the issues [F]ather raised in his
contempt petition involved [M]other’s failure to produce the child
for his 2015 vacation week. At that time, [M]other had refused
to exchange custody unless [F]ather would provide detailed
information about his travel plans, which he rejected. [The trial
court] held a hearing on the contempt allegations at which
[M]other testified she had been concerned about [F]ather’s
intended travel plans since he had twice left the country for
extended periods without providing any prior notice.
At the conclusion of that hearing, [the trial court] issued an
order. . . .[5]
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3
See N.G. v. C.G., 133 A.3d 66 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 128 A.3d 221 (Pa. 2015).
4
The contempt proceedings were presided over by the Honorable Jeannine
Turgeon, who also presided over the subject proceedings.
5
In that order, dated October 8, 2015, the court found Mother in contempt
of the parties’ custody orders, but declined to impose sanctions. Father filed
a notice of appeal, which this Court quashed as interlocutory and
unreviewable. See N.G. v. C.G., 2016 Pa. Super. Unpub. LEXIS 3572 (filed
October 3, 2016).
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To date, [the trial] court has not held a custody hearing on
[F]ather’s April 10, 2015 request for custody modification. As
noted, part of the delay was due to [F]ather’s pending appeal of
the most recent custody order, which appeal process concluded
December 1, 2015. The delay since then has been due to
[F]ather’s appeal from . . . [the] October 9, 2015 order that he
undergo a psychological (mental) examination (pursuant to
Pa.R.C.P. 1915.8) in contemplation of a custody hearing. . . .[6]
Given this history between the parties, [the trial court]
scheduled a hearing [for] July 7, 2016 on [F]ather’s petition
seeking enforcement of his 2016 vacation week. The day of the
hearing, [counsel] entered his appearance as [Father’s]
attorney. Immediately prior to the hearing, I held a conference
with both parties’ attorneys, following which I issued the
following court order (as amended):
AND NOW, this 7th day of July, 2016, upon
consideration of the [Father’s] petition for enforcement of
custody order, [Mother] will make the parties daughter
available for [F]ather’s vacation . . . from Saturday July
16, 2016 at 9 a.m. to Saturday July 23, 2016 at 9 a.m.
as provided for by the custody order entered November
17, 2011. He must advise Mother at least 2 hours before
leaving Dauphin County and provide her their destination.
Child shall wear [a] (charged up) Gizmo at all times,
provided by Mother, during these periods with dad.
Trial Court Opinion, 8/25/16, at 1-3 (footnote omitted).
Father timely filed pro se a notice of appeal on August 8, 2016.7 On
appeal, he presents the following issue for our review:
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6
Father filed a notice of appeal from the October 9, 2015 order, which this
Court quashed as interlocutory and unreviewable. See N.G. v. C.G., 2016
Pa. Super. Unpub. LEXIS 3480 (filed September 22, 2016).
7
Father did not file a concise statement of errors complained of on appeal
concurrently with his notice of appeal pursuant to Pa.R.A.P. 1925(a)(2)(i)
and (b). Father filed the concise statement one day later on August 9, 2016.
(Footnote Continued Next Page)
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1. Did the trial court abuse its discretion by adding new
requirements for Father’s vacation with his daughter in the
vacation clause of its existing custody [order] without cause or
reason thereof while appeals were pending before the Superior
Court from [o]rders in the trial court docket[?]
Father’s brief at 6.
Before reaching the merits of Father’s issue, we must first consider
whether the July 7, 2016 order was appealable. “‘[S]ince we lack
jurisdiction over an unappealable order it is incumbent on us to determine,
sua sponte when necessary, whether the appeal is taken from an appealable
order.’” Gunn v. Automobile Ins. Co. of Hartford, Connecticut, 971
A.2d 505, 508 (Pa. Super. 2009) (quoting Kulp v. Hrivnak, 765 A.2d 796,
798 (Pa. Super. 2000)).
“An 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). “[A] custody order will be considered final and appealable
only if it is both: 1) entered after the court has completed its hearings on
the merits; and 2) intended by the court to constitute a complete resolution
of the custody claims pending between the parties.” G.B. v. M.M.B., 670
A.2d 714, 720 (Pa. Super. 1996).
_______________________
(Footnote Continued)
Because Mother does not claim prejudice as a result of Father’s procedural
violation, we will not quash or dismiss his appeal on this basis. See In re
K.T.E.L., 983 A.2d 745 (Pa. Super. 2009).
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Instantly, after careful review, we conclude that the trial court did not
enter the July 7, 2016 order after completing its custody hearing on the
merits, and the order was not intended to completely resolve the custody
claims pending between the parties. Indeed, the certified docket reveals
that Father filed petitions for modification of the existing custody order on
April 10, 2015, and July 28, 2015, and those petitions remain pending.
When the custody hearing occurs, Father may raise any issue related to his
annual one-week vacation periods with Child, including, but not limited to,
whether Father shall be required to advise Mother of his destination with
Child at least two hours before leaving Dauphin County with Child, and
whether Child shall wear a “Gizmo” during Father’s one-week vacation
periods. As such, we conclude that the subject order is not final.
In addition, we observe that the July 7, 2016 order is not appealable
pursuant to the collateral order doctrine. See Pa.R.A.P. 313(a) (providing
that an appeal may be taken as of right from a collateral order of the lower
court). “A collateral order is an order separable from and collateral to the
main cause of action where the right involved is too important to be denied
review and the question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P.
313(b). In this case, the order does not meet the second and third prongs
of the collateral order doctrine. Father’s assertion that the trial court added
“new requirements” for his vacation with Child, i.e., providing Mother with
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notice of his destination and Child’s use of a “Gizmo,” is not too important to
be denied review at this juncture. Further, Father’s claim will not be
irreparably lost should the trial court include these “new requirements” in
the final custody order.
Accordingly, we hold that the July 6, 2016 order is not a final order,
nor is it appealable as a collateral order.8 Because we are without
jurisdiction to address this order, Father’s appeal must be quashed.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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8
We also observe that the order is not an interlocutory order appealable as
of right, pursuant to Pa.R.A.P. 311, and that Father did not attempt to bring
this appeal before this Court as an interlocutory appeal by permission
pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S.A. § 702.
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