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Thompson v. Thompson

December 16, 2008

TRACY THOMPSON, FOR SELF AND MINOR CHILDREN, APPELLEE
v.
THOMAS N. THOMPSON, II, APPELLANT



Appeal from the Order entered December 20, 2007, Court of Common Pleas, Delaware County, Civil Division at No. 07-14270.

The opinion of the court was delivered by: Donohue, J.

BEFORE: PANELLA, DONOHUE and COLVILLE*fn1, JJ.

OPINION

¶ 1 Thomas N. Thompson ("Father") appeals from the entry of an order of court pursuant to the Protection from Abuse Act, 23 Pa.C.S.A. § 6101, et seq. ("PFA Act"). We affirm.

¶ 2 Tracy Thompson ("Mother") and Father are the parents of five children, four of whom are minors. Mother and Father are divorced and share custody of the children pursuant to a custody order. At the time the events in question occurred, the parties' two minor sons, ages 16 and 13, and their eldest daughter, age 15, resided with Father. The parties' younger daughter, age 9, lived with Mother. In November 2007, Mother overheard an argument between Father and their older son while she was speaking with her older son on the telephone. Fearing for her children's safety, Mother filed a protection from abuse petition ("PFA petition") against Father. At the hearing on this petition, the PFA court entered an order removing the children from Father's custody and excluding Father from Mother's residence.

¶ 3 This timely appeal followed. On appeal, Father raises two principal issues for our consideration. First, Father challenges various rulings of the PFA court during the course of the evidentiary hearing. Second, Father challenges the sufficiency of the evidence to support the PFA court's decision.

¶ 4 We first address the issues regarding the conduct of the PFA court. Father argues that the PFA court erred by not permitting him to present an opening statement or closing argument; by not permitting him to present witnesses on his behalf; by limiting and/or hurrying cross-examination of Mother's witnesses; and by failing to enforce its sequestration order.

¶ 5 Our law is clear that,

[i]n order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue. On appeal the Superior Court will not consider a claim which was not called to the trial court's attention at a time when any error committed could have been corrected. In this jurisdiction ... one must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.

Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000). Based upon our review of the record, we conclude that Father has failed to preserve any of these issues for appeal.

¶ 6 Concerning opening statements, Father contends that although his counsel began to make an opening statement, she was interrupted by the PFA court. Appellant's Brief at 24. Father further contends that the PFA court then permitted Mother's counsel to make an opening statement, at the conclusion of which it "commanded that the parties be sworn in without returning to [Father's] opportunity to give an opening statement." Id.

¶ 7 Our review of the record does not support Father's recitation of events. Instead, it reveals that Father's counsel had just begun addressing the court, stating "And as a little background .," when the PFA court interjected with a series of questions regarding identity of the people in the courtroom and the names and ages of the children. N.T., 12/20/07, at 4--11. Counsel for both parties answered the PFA court's questions, during which time Mother's counsel gave the PFA court a brief update on the status and history of the parties' custody dispute. Following Mother's counsel's statement, the PFA court asked a few more questions and then instructed that the parties be sworn. Id. Father's counsel did not request permission to offer an opening statement or object to the fact that the PFA court was proceeding to witness testimony without permitting opening statements.*fn2 Because counsel did not interpose a timely and specific objection, this issue has not been preserved for appeal.

¶ 8 Father similarly has failed to preserve the issue of whether the PFA court erred in not entertaining closing arguments. The notes of testimony establish that after both parties rested their cases, the PFA court began discussing its rationale for granting a PFA order. Id. at 148. Father contends that his counsel's statement that she rested her case "except argument," id., constituted his request for closing argument. Appellant's Brief at 28. This statement, however, was the lone instance in which counsel even broached the matter of closing arguments; counsel did not advise the PFA court that she wanted to make a closing argument, and she did not object to the PFA court's failure to permit closing argument. This issue was therefore not properly preserved for appeal.

ΒΆ 9 The same problem exists with Father's argument that the PFA court impermissibly refused to allow Father to present witnesses on his behalf. Although Father argues that the PFA court denied him the chance to present the testimony of the parties' 15-year-old daughter, the record reveals that prior to calling any witnesses, Father's counsel and the PFA court discussed the nature of the daughter's proposed testimony and the testimony of another witness Father intended to call on his behalf. Id. at 120-24. The PFA court indicated its desire to hear Father's testimony, and so Father took the stand. Id. at 124-25. Following Father's testimony, Father's counsel made no attempt to call any other witness to the stand. Id. at 148. The PFA court at no time ruled that any witness was excluded from testifying. Even if Father's counsel construed the PFA court's request to hear Father's testimony at the outset as a prohibition against any other witness's testimony, Father's counsel ...


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