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[U] Pinero v. Kohr

Superior Court of Pennsylvania

June 25, 2013

BIANCA PINERO, Appellant
v.
BRYCEN RAY KOHR

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 22, 2012, in the Court of Common Pleas of Lebanon County Civil Division at No. 2008-20639

BEFORE: FORD ELLIOTT, P.J.E., WECHT AND COLVILLE, [*] JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

In this custody matter, appellant, Bianca Pinero ("Mother") appeals an order entered June 22, 2012 denying her motion to vacate a July 29, 2010 contempt order that granted appellee ("Father") primary physical and legal custody of the parties' child as well as restricted Mother's visitation with said child. As the appeal in this case was not timely filed, we lack jurisdiction. Therefore, we must quash.

We adopt the trial court's recitation of the protracted procedural history of this matter as follows:

This case commenced on January 20, 2009, when [Mother] filed a Complaint for Custody of the parties' child. On February 12, 2009, a conference was held before a custody conciliator. [Mother] did not appear at this conference despite filing the Custody Complaint. The custody conciliator recommended, among other things, that the parties share both legal and physical custody of the child. On February 17, 2009, the custody conciliator's recommendation was made an Interim Order of Custody. At [Mother]'s request, a custody hearing was scheduled for May 4, 2009 before the custody conciliator.
On March 13, 2009, [Father] filed a Petition for Contempt, claiming that [Mother] was failing to comply with a provision in the current Custody Order. A hearing was held on the Petition for Contempt on April 2, 2009. After hearing, the Petition for Contempt was continued and the parties were urged to comply with the Custody Order.
After the custody hearing was held on May 4, 2009, the custody conciliator recommended again, among other things, that the parties share legal and physical custody of the child. The recommendation was made an Interim Order of Custody on May 7, 2009. At [Mother]'s request, a de novo custody hearing was scheduled for July 1, 2009. Thereafter, the de novo custody hearing was discontinued at [Mother]'s request.
On October 6, 2009, [Mother] filed a Petition for Modification of the Custody Order, whereby [Mother] sought [Father] to have limited contact with the child. After a conference was held before the custody conciliator, the conciliator recommended that the May 7, 2009 Order remain in effect. The recommendations were adopted as an Interim Custody Order on November 23, 2009. A custody hearing was scheduled before the conciliator on February 10, 2010, but was continued until April 14, 2010. [Mother] sought to cancel the custody hearing again, and the hearing was discontinued. On April 14, 2010, the May 7, 2009 Order as well as the terms in the November 2009 Interim Order became a Final Order.
On July 7, 2010, [Father] filed a Petition for Contempt alleging that [Mother] denied him custodial time on or about July 4, 2010. A hearing was scheduled on the Contempt Petition on July 29, 2010. [Father] filed another Petition on July 20, 2010 asking the Court to enter an Order prohibiting [Mother] from removing the child from the jurisdiction of the Court. On July 21, 2010, [Mother] was ordered to have the child present for the July 29, 2010 hearing. Further, [Mother] was prohibited from removing the child from Lebanon County pending further Court Order.
On July 29, 2010, the hearing was held. [Mother] did not attend the hearing nor did she have the child present. [Mother]'s counsel at the time, Christine Pfau Laney, Esq., was present at the hearing. At the conclusion of said hearing, this Court found [Mother] in contempt of court with regard to the custody order entered in this matter. Further, we directed that primary physical and legal custody of the child was immediately to be awarded to the [Father], and [Mother] was to have supervised visitation.
On October 22, 2010, [Mother] filed a Petition for Modification of Custody Order. A custody conference was scheduled for January 12, 2011. On January 13, 2011, the custody conciliator recommended that the July 29, 2010 Order remain in full effect pending a hearing. A custody hearing was scheduled before the Court on May 4, 2011 but was continued until June 16, 201[1]. On May 20, 2011, [Mother]'s counsel at the time, Shawn Dorward, Esq., filed a Petition to Withdraw from Representation. On June 13, 2011, Attorney Dorward's Petition to Withdraw was granted. The custody hearing was held on June 16, 2011, and [Mother] did not even attend the custody hearing. The Petition for Modification was dismissed.
On January 23, 2012, [Mother] filed her document titled, "Plaintiff's Motion to Vacate July 29, 2010, Order Granting Defendant Primary Physical and Legal Custody, and Restricting Plaintiff's Visitation" (hereinafter "Motion to Vacate"), which is the subject of this appeal. In the Motion to Vacate, [Mother] asks the Court to vacate the July 29, 2010 Order because [Mother] alleges that the Order is void as a matter of law as this Court lacked subject matter jurisdiction to enter the Order. [Mother] claims that she was not provided with notice that custody would be at issue at the July 29, 2010 hearing; therefore, she was denied due process, and we did not have subject matter jurisdiction.
On February 9, 2012, [Father] filed his Answer and New Matter to the Motion to Vacate. On March 8, 2012, [Mother] filed a Petition for Emergency Custody. [Father] filed his Answer and New Matter to the Petition for Emergency Custody on March 23, 2012. [Father] filed another Petition for Contempt on April 2, 2012.
A hearing on the Motion to Vacate and Petition for Contempt was held on June 12, 2012. At the conclusion of the hearing, we denied the Motion to Vacate. The Order was entered on the docket on June 20, 2012 and an Amended Order, which corrected a typographical error, was entered on the docket on June 22, 2012.
[Mother] filed her Notice of Appeal and Concise Statement of Errors Complained of on Appeal on July 20, 2012.

Trial court opinion, 8/7/12 at 1-4 (emphasis added).

Mother raises the following issue for our consideration:

Whether the trial [court] erred as a matter of law and abused its discretion in denying [Mother's] Motion to Vacate the July 29, 2010, Order Granting [Father] Primary Physical and Legal Custody, And Restricting [Mother's] Visitation as the July 29, 2010 Order?

Mother's brief at 4.

Pursuant to Pennsylvania Rule of Appellate Procedure 903(a), a notice of appeal must be filed within 30 days of entry of the order from which the appeal is taken. Time limitations for taking appeals are strictly construed and cannot be extended as a matter of grace. Pa.R.A.P. 105(b); Commonwealth v. Braykovich, 664 A.2d 133, 136 (Pa.Super. 1995), appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996). Even where the parties do not challenge the timeliness of an appeal, this court can raise the matter sua sponte, as the issue is one of jurisdiction to entertain the appeal. In re Adoption of W.R., 823 A.2d 1013, 1015 (Pa.Super. 2003). As a general rule, this court has no jurisdiction to entertain an untimely appeal. In re Estate of Allen, 960 A.2d 470, 471 (Pa.Super. 2008).

Instantly, the trial court entered an appealable order when it found Mother in civil contempt on July 29, 2010 for failing to attend the hearing with the parties' child. Clearly, Mother was aware of the hearing as her counsel was present. At the conclusion of the hearing, the trial court directed that primary physical and legal custody of the child was awarded to Father, and awarded legal fees incurred by Father and against Mother in the amount of $2, 116.25 to be paid within 30 days. (Notes of testimony, 7/29/10 at 13.) Mother did not file a notice of appeal from that order. Instead, on October 22, 2010, Mother filed a petition to modify custody citing the July 29, 2010 order that awarded Father primary physical and legal custody of child. (Certified record, Document #47.) On January 23, 2012, Mother filed a document titled "Plaintiff's Motion to Vacate July 29, 2010, Order Granting Defendant Primary Physical and Legal Custody, and Restricting Plaintiff's Visitation" which is the subject of this appeal. (Certified record, Document #70.) Clearly, Mother's current appeal is untimely.[1] Appeal quashed.

Colville, J. files a Dissenting Memorandum.


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