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[U] B.S.H. v. C.A.F.

Superior Court of Pennsylvania

July 19, 2013

B.S.H., Appellant
v.
C.A.F., n/b/m C.A.D., Appellee B.S.H., Appellant
v.
C.A.F., n/b/m C.A.D., Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered October 12, 2012, In the Court of Common Pleas of Lancaster County, Civil Division, at No. Cl-11-08670.

Appeal from the Order Entered December 14, 2012, In the Court of Common Pleas of Lancaster County, Civil Division, at No. Cl-11-08670.

BEFORE: SHOGAN, MUNDY and COLVILLE [*] , JJ.

MEMORANDUM

SHOGAN, J.

B.S.H. ("Father"), appeals from the order entered October 12, 2012, that dismissed his petition for contempt against C.A.F., now known by marriage as C.A.D. ("Mother"), after a custody conciliation conference on Father's custody contempt petition against Mother scheduled for September 18, 2012, at which Father failed to appear. Father also appeals from a second order entered on December 14, 2012, that dismissed, with prejudice, Father's second custody contempt petition against Mother, after a custody conciliation conference scheduled for December 4, 2012, at which Father again failed to appear. After careful review, we vacate and remand for further proceedings.

Due to the numerous court filings, letters, improperly dated documents, and Father's transfer between the Berks County and Lancaster County jails, the certified record and factual history are muddled. The parties are the parents of two daughters, D.E.H., born in February of 2005, and E.P.H., born in November of 2007 ("the Children"). On August 15, 2011, the Lancaster County Court of Common Pleas entered an order, directing the Berks County Court of Common Pleas to transfer the existing custody case between the parties to Lancaster County.

On October 4, 2011, Mother filed a petition to modify the existing custody order in Lancaster County, alleging, inter alia, that Father had a history of violating protection from abuse ("PFA") orders and criminal offenses. In the petition, Mother requested a criminal history hearing pursuant to 23 Pa.C.S.A. §§ 5329 and 5330 of the Child Custody Act. Mother also requested the suspension of Father's partial custody, visitation, and/or contact with the Children until the court could ascertain whether Father could have any contact without harm to Mother or the Children.

The trial court explained the subsequent procedural history as follows:

The Court held a Criminal History Hearing on March 13, 2012, pursuant to 23 Pa.C.S.A. § 5329(c) and § 5330(b) to determine whether the Plaintiff (hereinafter, "Father") poses a threat of harm and/or risk of harm to the children of the parties. An Order was entered on March 14, 2012, which found that Father does not pose a threat of harm and/or a risk of harm to the Children. The Order also provided that Father must engage in anger management counseling. [Paragraph (a) of the] Order granted shared legal custody of the children to Father and the Defendant (hereinafter, "Mother"). [At paragraph 3(a), Mother] was granted sole physical custody of the Children pending Father's completion [of] his counseling regarding anger management.

Trial Court Opinion, 1/29/13, at 1-2.

Father alleges that, on July 26, 2012, he placed two handwritten documents in the United States Mail at the Lancaster County Prison, where he was incarcerated. Father's Brief at 5. The first document was a petition for contempt, alleging Mother's failure to comply with paragraph two of the March 14, 2012 order, and the second document was a motion to proceed in forma pauperis. The trial court entered Father's custody contempt petition on its docket on July 31, 2012, and entered Father's motion to proceed in forma pauperis on August 1, 2012. In an order entered on August 9, 2012, the trial court granted Father's motion to proceed in forma pauperis.

The record reflects that the trial court entered an order to appear with regard to Father's custody contempt petition, and it provided notice of the order pursuant to Pa.R.C.P. 236 on August 15, 2012. In the notice, the court scheduled the custody conciliation hearing to occur on September 18, 2012, before Custody Conference Officer Daneen L. Miller-Smith. The notice reflects that the trial court sent a copy of the notice to Father, and an envelope included in the certified record, with a return address of the Lancaster County Prothonotary's Office, reveals that it was sent to Father at the Lancaster County Prison. However, the notice was returned to the Lancaster County Prothonotary's Office because Father was no longer incarcerated in Lancaster County. Certified Record at #11.

Father explains that on July 27, 2012, he was transferred from the Lancaster County Prison to the Berks County Prison. Father's Brief at 6. Father claims that he requested information regarding the forwarding of his mail on numerous occasions but did not receive a response. Id. In fact, the record reflects that on August 16, 2012, the trial court received a letter from Father, dated August 9, 2012, stating that he had been transferred to Berks County Prison, that he was having difficulty receiving his mail from the Lancaster County Prison, and that he had been informed his mail was being returned to sender without a forwarding address. In the letter, Father requested the trial court to forward information regarding his documents to the Berks County Prison. Certified Record at #12.

Father alleges that, out of concern that his first petition was unacceptable for filing, he typed a second petition for contempt, dated October 1, 2012, including copies of the March 14, 2012 order. Father's Brief at 6. He sent the second custody contempt petition and a second motion to proceed in forma pauperis to the Lancaster County Prothonotary's Office. Id. The trial court entered the documents on its docket on October 16, 2012. Id.

The record reflects that in an order dated October 22, 2012, and entered on November 5, 2012, the trial court granted Father's second motion to proceed in forma pauperis. The record also reflects that on November 9, 2012, the trial court issued a notice and order to appeal, scheduling a custody contempt conciliation before Custody Conference Officer Daneen L. Miller-Smith on December 4, 2012. The trial court sent a copy of the notice to Father, and the trial court's Court Administration Office Scheduling Cover Sheet (CAOSCS) lists Father's address as the Berks County Prison.

On October 12, 2012, the trial court entered the order dated October 10, 2012, dismissing Father's first custody contempt petition. This order mistakenly reflected a date of August 10, 2012, and a handwritten correction appears on the face of the document. It is unclear who made the correction or when the correction was made. The order states that the earlier custody order dated March 14, 2012, would remain in full force and effect. The record further reveals a custody conference summary, dated September 18, 2012, which states: "The petition for contempt is dismissed as [Father] failed to pursue such petition & did not contact the court regarding his absence." The custody conference officer and Mother signed the summary.

Father claims that, on October 18, 2012, he received the order dated August 10, 2012 that was altered to October 10, 2012. Father's Brief, at 6. Father also states that the order included an entry date with the Prothonotary of Lancaster County of October 11, 2012. Id. Father attached a copy of the original order, dated August 10, 2012, as an exhibit to his notice of appeal. In actuality, this is the October 12, 2012 order from which Appellant appeals.

Father explains that he then sent written correspondence dated October 29, 2012, to the chambers of Judge Jeffrey J. Reich, inquiring about appealing the order entered on October 12, 2012. Id. at 7. Father states that he received notice, dated October 24, 2012, of a custody contempt conciliation conference on his second petition that was scheduled to occur on December 4, 2012. Id.

Father's October 29, 2012 letter to the trial court is not in the certified record. Father, however, attached to his notice of appeal entered on November 26, 2012, a copy of the two-page letter that he allegedly received from the trial judge's law clerk on the judge's court letterhead stationery, dated November 6, 2012. The letter references Father's "Correspondence to Judge Reich dated October 29, 2012." The letter also states that a corrected copy of the order dismissing Father's first contempt petition is enclosed. Further, the letter provides:

It should be noted that the Prothonotary's Office had the original corrected prior to mailing the Order out but they forgot to change the copies. We are sorry for any confusion this has caused.
With regards to the rest of your questions, this office cannot give any legal advice and is prohibited from assisting with the completion of any legal document. I suggest you contact an attorney for any remaining concerns you have.
Further, you should note that if you wish to participate in any future conferences pending before this Court, it is your responsibility to make the arrangements.

Attachment to the notice of appeal entered on November 26, 2012 (emphasis added).

Father maintains he then took the following action with regard to proceeding on his petition for contempt.

Father promptly submitted a typed request to custody conference officer Daneen L. Miller-Smith via first class mail to the address of the Lancaster County Courthouse that the notice of hearing was mailed from, asking that he be provided with information of any requirement not yet fulfilled by him in order to participate in the custody conference A.S.A.P. due to Father not having Internet service to obtain a court administration office scheduling cover sheet (CAOSCS) required to request to change the hearing as stated in the notice of court appearance. Father also requested Ms. Miller-Smith confirm her contact information which had not been provided to date.

Father's Brief at 8.

Father's notice of appeal from the order entered on October 12, 2012, was dated November 12, 2012.[1] Father erroneously filed that notice of appeal to the Commonwealth Court. Father concurrently filed a motion to proceed on the appeal in forma pauperis. In an order dated November 26, 2012 and entered on November 28, 2012, with Pa.R.C.P. 236 notice issued on that date, the trial court granted Father's motion.

The Commonwealth Court, by order dated December 3, 2012, transferred the appeal to this Court. See Trial Court Opinion, 12/28/12, at 2 n.2. On November 28, 2012, the trial court entered an order dated November 26, 2012, directing Father to file a Concise Statement of Errors Complained of on Appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) within twenty-one days. Father filed his Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) with the trial court on December 14, 2012.[2] Id.

On December 4, 2012, Father failed to appear at the scheduled custody conciliation conference on his second petition. Similar to the September 18, 2012 summary referenced above, on December 4, 2012, the custody conference officer, Ms. Miller-Smith, recommended dismissal of the contempt petition because "[Father] failed to pursue such petition & did not contact the court regarding his absence." Further, the custody conference officer recommended that Mother "may participate in future conferences via telephone if she chooses to do so. She shall call the Court Administration Office to notify them that she intends to exercise such option & make arrangements." The custody conference officer and Mother signed the Summary, which lists Father's address as the Berks County Prison.

In an order entered on December 14, 2012, the trial court approved the custody conference officer's recommendation and dismissed Father's second custody contempt petition with prejudice, directing that the March 14, 2012 order shall remain in full force and effect.

On December 27, 2012, Father timely filed a notice of appeal from the order entered on December 14, 2012, along with a concise statement of errors complained of on appeal.[3] Father also filed a motion to proceed on the appeal in forma pauperis with the notice of appeal. In an order dated January 9, 2013 and entered on January 10, ...


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