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[U] J.S.S v. M.J.S.

Superior Court of Pennsylvania

February 11, 2014

J.S.S, Appellee
M.J.S., Appellant


Appeal from the Order entered March 18, 2013 In the Court of Common Pleas of Allegheny County Family Court, at No(s): FD10-007983-008.

Joseph D. Seletyn, Esq.




M.J.S. ("Father") appeals the custody order entered March 18, 2013, wherein the trial court granted J.S.S. (" Mother") primary physical custody, and granted Father partial physical custody, of their m ale child, C.W.S (born in April of 1997); their fem ale child, A.C.S. (born in March 2000); and their m ale child, T.C.S. (born in November of 2004) (collectively "the Children"). Mother and Father were also granted shared legal custody. We vacate and remand.

Mother and Father were married on July 22, 1995, and separated on April 5, 2010. Following an unsuccessful attempt to mediate their custody issues, Father filed a Complaint for Primary Physical Custody of the Children on July 22, 2010. Generations Education and Mediation programs were scheduled. On July 23, 2010, Mother filed a Complaint in Divorce, along with a counterclaim for primary physical custody of the Children.

Father filed a Motion for Interim Custody in August 2010 in an attempt to obtain shared physical custody, which was denied. The parties then commenced co-parenting counseling with Dr. Wilson, and entered into an agreement for a shared custody schedule on a short term basis. As the custody issue was not resolved by this agreement, the trial court ordered psychological evaluation to be conducted by Dr. Eric Bernstein in January of 2011. Upon completion of the psychological evaluation, a judicial conciliation was scheduled for April 6, 2011, but later rescheduled for March 28, 2011.

Father filed a second Petition for Interim Custody. Pursuant to the recommendation of Dr. Bernstein, an Interim Custody Order was entered on March 15, 2011. Due to the fact that the parties could not determine a holiday custody schedule, the trial court entered another Interim Order on March 28, 2011, vacating all prior orders and reiterating the term s of the March 15, 2011 order and adding additional provisions regarding co-parenting counseling, holidays, and vacations. As the parties were still unable to reach an agreement as to holidays, the trial court entered an order on April 13, 2011, outlining a holiday custody schedule. The trial court scheduled a pre-trial conference for July 26, 2011. Father filed motions to obtain compliance with vacation provisions, as well as to allow the younger Children to attend the eldest child's confirmation, which were granted by the trial court.

On August 18, 2011, the trial court scheduled a three-day trial for November 7, 15, and 29, 2011.[1] The trial actually occurred on November 7, 15, 22, 23, and December 19, and 21, 2011. An updated psychological evaluation was conducted during this time period.

Following the custody trial, the trial court entered a custody order on January 18, 2012, outlining Mother's and Father's custodial periods for 2012, 2013, and 2014. On February 1, 2012, Mother filed a Motion for Reconsideration of the January 18, 2012 custody order. The trial court granted Mother's Motion for Reconsideration in part to allow for a review hearing before implementation of the trial court's 2013 and 2014 physical custody schedule in conjunction with a new psychological evaluation. A review hearing was set for November 19, 2012, and the trial court ordered an updated psychological evaluation to be completed before the review hearing. Hearings were held on November 19, and December 5, 2012. The custody matter was not completed, and, on December 6, 2012, the trial court stayed the January 18, 2012 custody order relating to the increased custody provisions for 2013 and 2014.

Following the stay, Father allegedly engaged in various threatening conduct towards Mother, and she requested an order of no-contact, which was granted on an interim basis on December 18, 2012. Father filed a Petition for Protection from Abuse ("PFA") on December 27, 2012, and the trial court dismissed Father's PFA petition on January 13, 2013. On February 5, 2013, the trial court granted Mother counsel fees, reasoning that Father had filed his PFA petition in bad faith.

The custody proceedings resumed on March 8, and March 11, 2013. By order dated March 14, 2013, and entered on March 18, 2013, the trial court made the physical custody provisions of primary physical custody to Mother and partial physical custody to Father, and shared legal custody to both parties as listed in the January 18, 2012 order permanent.

On April 12, 2013, Father filed a timely notice of appeal and a concomitant statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed its Rule 1925(a) opinion on May 23, 2013. On July 10, 2013, Mother filed a Motion to Quash Father's appeal, alleging Father's ...

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