D.T. v. K.A.

J-A23045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.T., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
K.A.,
Appellee No. 444 WDA 2014
Appeal from the Order entered on March 7, 2014,
in the Court of Common Pleas of Allegheny County,
Family Court Division at No: FD 08-003646-010
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 31, 2014
D.T. (“Father”) appeals, pro se, from the Order entered on March 7,
2014, denying reconsideration of the Custody Order1 awarding shared legal
custody and shared physical custody of R.T. (“Child”), born in May 2008, to
Father and Child’s mother, K.A. (“Mother”). We dismiss the appeal.
The trial court set forth the factual background and procedural history
of this appeal as follows:
On or about July 17, 2008, [M]other filed a [C]omplaint in
support on behalf of [C]hild. At the time that the [C]omplaint
was filed, [F]ather was residing in Georgia. When paternity was
established through genetic testing, [F]ather returned to
Allegheny County, Pennsylvania[,] and[,] on May 4, 2010,
[F]ather filed a [C]omplaint for shared custody of [C]hild.
The parties participated in custody education and
mediation as well as conciliation without reaching an agreement.
1
The Custody Order is dated December 13, 2013, but was not entered on
the docket until December 16, 2013.
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Subsequently, on May 30, 2010, a custody hearing was held
before the Partial Custody Hearing Officer, Laura Valles
[“Hearing Officer Valles”]. Hearing Officer Valles issued a report
and recommendations on October 12, 2012[,] that gave primary
physical custody to [M]other, and partial [physical] custody to
[F]ather on a transitional schedule. On November 1, 2010,
[M]other timely filed exceptions to [] Hearing Officer [Valles]’s
report and recommendations. Mother subsequently filed a brief
in support of her exceptions on December 6, 2010[,] and
[F]ather filed a brief on February 9, 2011. On February 10,
2011, [the trial court] denied the exceptions, and the
recommendations of [] Hearing Officer [Valles] became a final
[O]rder of court.
Since the hearing on the exceptions on February 9, 2011,
both [M]other and [F]ather have led [C]hild through a torturous
labyrinth of filings and court hearings, which culminated in a
two-day custody trial in October of 2013.
A custody trial was held in this case on October 23 and 24,
2013. The case was continued until December 6, 2013, for the
court to hear from [F]ather’s former paramour and caregiver for
[C]hild, and for the parties to make argument and present posed
[sic] orders of court. The record was closed on December 6,
2013. [The trial court] recessed until December 13, 2013[,] to
review evidence in this case and prepare an order.
On December 1[6], 2013, [the trial court] issued [the
Custody O]rder[,] giving the parties as close to shared custody
as was practicable in this case.[1] [The trial court] placed its
findings on the record, which included an application of the 16
Factors to consider in Awarding Custody pursuant to 23
Pa.C.S.A. § 5328. [The trial court] also placed [its] findings in
writing.[2]
2
The Custody Order awarded shared legal custody of Child to both Mother
and Father. See Trial Court Order, 12/16/13, at ¶ 15. Additionally, the
Custody Order awarded Mother primary physical custody of Child during the
school term, and partial physical custody to Father during that time, in
accordance with a schedule. See id. at ¶¶ 1, 2. The Custody Order
awarded Father primary physical custody of Child when school is not in
session in the summer, with Mother having partial physical custody during
that time. See id. at ¶¶ 3, 4.
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On January 8, 2014, [F]ather filed [a Motion] for
reconsideration of the [Custody O]rder entered on December
1[6], 2013. On March 7, 2014, [the Motion for] reconsideration
was denied. Father filed [a] Notice of Appeal on March 14,
2014. Father failed to file his [Concise] Statement of Matters
Complained of on Appeal with his Notice of Appeal[,] as required
by [Pa.R.A.P.] 1925(b). At [the trial court’s] request, [F]ather
filed a Concise Statement of Matters Complained of on Appeal on
March 28, 2014. Father has not ordered copies of the
transcripts of the custody trial or the argument on his Motion for
reconsideration to be prepared. Consequently, no transcripts
have been prepared in this case.
Trial Court Opinion, 4/21/14, at 1-2 (footnote added).
Initially, we must determine whether this Court lacks jurisdiction over
the appeal due to timeliness considerations. An appeal must be taken from
the underlying order, not from a subsequent order denying reconsideration
of the underlying order. See Valentine v. Wroten, 580 A.2d 757, 758 (Pa.
Super. 1990). Thus, Father was required to appeal the Custody Order
(rather than the Order denying his Motion for reconsideration of the Custody
Order), and to file his appeal within thirty days from the entry of the
Custody Order.3 See Pa.R.A.P. 903(a). However, Father’s improper appeal
from the Order denying reconsideration is not fatal to his appeal if he timely
appealed from the Custody Order.
Pursuant to Pa.R.C.P. 236(a)(2), the prothonotary must immediately
give written notice to the parties of any order entered by the trial court.
3
We note that the proper procedure would have been for Father to file a
notice of appeal of the Custody Order when he filed his Motion for
reconsideration. See Cheathem v. Temple Univ. Hosp., 743 A.2d 518,
520-521 (Pa. Super. 1999) (citing Pa.R.A.P. 1701(b)(3), cmt.).
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See Pa.R.C.P. 236(a)(2). Additionally, the prothonotary must note in the
docket the giving of such notice. See Pa.R.C.P. 236(b). Finally, the date of
entry of an order is “the day on which the clerk makes the notation in the
docket that notice of entry of the order has been given as required by
Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b) (emphasis added).
Our Supreme Court has held that “an order is not appealable
until it is entered on the docket with the required notation that
appropriate notice has been given.” Frazier v. City of
Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999)
(emphasis added). Where there is no indication on the docket
that Rule 236(b) notice has been given, then the appeal period
has not started to run. Id. at 621-22, 735 A.2d at 115. Our
Supreme Court has expressly held that this is a bright-line rule,
to be interpreted strictly. That the appealing party did indeed
receive notice does not alter the rule that the 30-day appeal
period is not triggered until the clerk makes a notation on the
docket that notice of entry of the order has been given. Id.
In re L.M., 923 A.2d 505, 508 (Pa. Super. 2007).
Our review of the record reveals that the prothonotary failed to
indicate on the trial court docket that it provided notice of the Custody Order
to the parties, in compliance with Pa.R.C.P. 236(b).4 Thus, the appeal
period was not triggered. See Frazier, 735 A.2d at 115. Accordingly,
Father’s appeal from the Custody Order is not untimely, and we will proceed
to review the merits of the appeal.
On appeal, Father raises the following issues for our review:
4
We note, with disapproval, the absence of Rule 236(b) notice on the trial
court docket for any of the Orders entered in this case.
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1. [Whether] [t]he trial [c]ourt committed error and abuse[d] []
its discretion in finding that [M]other was not in contempt of
[the] parties’ custody order 68 times with no sanctions [with]
regard to Father’s repeatedly filing partition [sic] for special
relief from May 2010 to July 2014[?]
2. [Whether] the trial [c]ourt committed error and abuse[d] []
its [d]iscretion by failing to enforce sanctions of [$]1,000
dollars of [sic] on Mother [] [?]
3. [Whether] [t]he trial [c]ourt committed error and abuse[d] []
its [d]iscretion in not finding past and present abuse of
[C]hild by [M]other [] and [maternal] grandmother [P.L.
(“Maternal Grandmother”)]?
4. [Whether] [t]he trial [c]ourt committed error and abuse[d] []
its [d]iscretion in not finding that Father to have a [sic] more
[s]tability and continuity in [] [C]hild’s education, family life,
and community life[?]
5. [Whether] the trial [c]ourt committed error and abuse[d] []
its [d]iscretion by failing to exclude witnesses who were not
listed by either parties [sic][?]
6. [Whether] the trial [c]ourt committed error and abuse[d] []
its [d]iscretion by failing to include [s]ubpoenaed witnesses
who did not appear[:] Chief William Kurzek [of the] Versailles
Police Department[;] [A.D.; M.L. and Maternal
Grandmother][?]
Father’s Brief at 5-6 (unnumbered, issues renumbered for ease of
disposition).5
As the custody trial in this matter was held in October of 2013, the
Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable.
See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if
5
We note that Father’s pro se Brief does not include a statement of the
questions involved on appeal, in violation of Pa.R.A.P. 2111(a)(4) and
2116(a). The above issues were identified in the Summary of the Argument
section of Father’s Brief.
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the custody evidentiary proceeding commences on or after the effective date
of the Act, i.e., January 24, 2011, the provisions of the Act apply). With any
custody case decided under the Act, the paramount concern is the best
interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the
Act provides that, upon petition, a trial court may modify a custody order if
it serves the best interests of the child. See 23 Pa.C.S.A. § 5338. Section
5328(a) of the Act sets forth the best interests factors that the trial court
must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).
In custody cases, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
C.R.F. v. S.E.F., 45 A.3d at 443 (citation omitted).
Initially, we observe that Father waived his first and second issues, as
he failed to raise them in his Concise Statement. See Krebs v. United
Refining Co. of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006)
(stating that a failure to preserve issues by raising them in both the concise
statement of matters complained of on appeal and the statement of
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questions involved portion of the brief on appeal results in a waiver of those
issues). Father has also waived any issue with regard to Maternal
Grandmother, as stated in his third issue, as he failed to raise it in his
Concise Statement. See id.
Additionally, there are numerous defects in Father’s pro se Brief that
impede our ability to conduct meaningful appellate review of his preserved
issues. Our rules of appellate procedure provide that where the defects in a
brief are substantial, the appeal may be quashed or dismissed. See
Pa.R.A.P. 2101; see also Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
Super. 2006) (stating that “[a]ppellate arguments which fail to adhere to
[the Pennsylvania Rules of Appellate Procedure] may be considered waived,
and arguments 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.”) (citations omitted).
As noted above, Father’s pro se Brief does not include a statement of
the questions involved on appeal. See Pa.R.A.P. 2111(a)(4), 2116(a).
Additionally, Father failed to support his preserved issues with any
discussion or citation to pertinent legal authority. See Pa.R.A.P. 2119(a),
(stating that “[t]he argument shall be divided into as many parts as there
are questions to be argued . . . followed by such discussion and citation of
authorities as are deemed pertinent.”); see also Pa.R.A.P. 2119(b) (stating
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that “[c]itations of authorities must set forth the principle for which they are
cited.”).
Father also failed to support his issues with appropriate references to
the record. See Pa.R.A.P. 2119(c) (stating that “[i]f reference is made to
the pleadings, evidence, charge, opinion or order, or any other matter
appearing in the record, the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the place in the
record where the matter referred to appears.”).
Here, the closest Father comes to making an argument appears in his
request for relief in the Conclusion portion of his brief, where he asks this
Court to grant him primary custody of Child during the school term,
asserting that he is the more responsible parent. See Father’s Brief at 2
(unnumbered). While Father cites MacDougall v. MacDougall, 890 A.2d
890 (Pa. Super. 2012), in the Table of Citations portion of his brief, he has
failed to discuss how he finds that case to be supportive of his preserved
issues.6 See Pa.R.A.P. 2119(b). The lack of any legal analysis or citation to
relevant case law to support Father’s claims of error, or any explanation of
his claims in relation to relevant case law, precludes our meaningful
appellate review of the Custody Order. Thus, we cannot address the appeal.
6
Our research reveals that the proper citation is MacDougall v.
MacDougall, 49 A.3d 890 (Pa. Super. 2012). The case involved an appeal
by a wife from the trial court’s denial of her petition for civil contempt
against her former spouse. See id. at 890. As such, it would only
conceivably relate to the matter of contempt that Father waived by failing to
preserve his first issue on appeal. Thus, we will not address MacDougall.
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See Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996)
(quashing the appeal where appellant failed to include citation to legal
principles or develop legal argument).
This Court has stated that an appellant’s status as a pro se litigant is
not an excuse for failing to adhere to our appellate rules. See Wilkins v.
Marsico, 903 A.2d 1281, 1284-85 (Pa. Super. 2006). “Although this Court
is willing to liberally construe materials filed by a pro se litigant, pro se
status confers no special benefit upon the appellant. To the contrary, any
person choosing to represent himself in a legal proceeding must, to a
reasonable extent, assume that his lack of expertise and legal training will
be his undoing.” Id. at 1284-85. As Father has chosen to proceed pro se,
he cannot now expect this Court to act as his attorney. See Smathers, 670
A.2d at 1160.
Finally, our review of the certified record confirms that Father
neglected to obtain the notes of testimony from the October 23-24, 2013
custody trial and have them made part of the certified record. See Trial
Court Opinion, 4/21/14, at 2, 4-5. Thus, the trial court requests that we
dismiss the appeal for this reason. See id. at 4. Rule 1911(a) of the
Pennsylvania Rules of Appellate Procedure provides that “[t]he appellant
shall request any transcript required under this chapter in the manner and
make any necessary payment or deposit therefor in the amount and within
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the time prescribed by Rules 5000.1 et seq. of the Pennsylvania Rules of
Judicial Administration (court reporters).” Pa.R.A.P. 1911(a).
When the appellant . . . fails to conform to the requirements of
Rule 1911, any claims that cannot be resolved in the absence of
the necessary transcript or transcripts must be deemed waived
for purposes of appellate review. It is not proper for either the
Pennsylvania Supreme Court or the Superior Court to order
transcripts nor is it the responsibility of the appellate courts to
obtain the necessary transcripts.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)
(quotations omitted).
Here, Father had the burden to produce a complete record for
appellate review.7 See In re O'Brien, 898 A.2d 1075, 1082 (Pa. Super.
2006) (stating that it is an appellant’s duty to insure that the certified record
contains all documents necessary for appellate review). The failure to
assure that the certified record is sufficient to conduct a meaningful review
warrants quashing the appeal. See Smith v. Smith, 637 A.2d 622, 624
(Pa. 1993) (stating that where the appellant is remiss in fulfilling his duty to
provide a record which is sufficient to permit meaningful appellate review,
the appeal must be quashed).
We agree with the trial court that, without the notes of testimony, the
certified record is deficient, thereby preventing this Court from engaging in
meaningful appellate review. Accordingly, based on the numerous defects
impeding our review, we are constrained to dismiss the appeal.
7
Father did not seek, nor was he granted, in forma pauperis status.
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Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2014
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