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[U] R.D. v. M.D.

Superior Court of Pennsylvania

March 3, 2014

R.D., Appellant
v.
M.D., Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered August 5, 2013 In the Court of Common Pleas of Montgomery County Civil Division No.: 2011-22262.

Joseph D. Seletyn, Esq.

BEFORE: ALLEN, JENKINS, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

R.D., ("Father"), appeals from the August 5, 2013 order granting the petition for special relief filed by M.D., ("Mother"), ordering that the parties' children be enrolled in kindergarten in Kutztown Elementary School in Kutztown Area School District, directing that the parties share transportation equally, ordering that they meet at a location half way between the parties' residences to exchange custody, and denying Father's counterclaim. We affirm.

Mother and Father married in June 2005. They are the parents of twins, K.D. and L.D. ("Children"), who were born on September 1, 2007. The parties separated in 2011 and Mother relocated to Kutztown, Berks County. Father remained in the family home in Hatfield, Montgomery County.

Father filed a custody complaint on April 1, 2011, and on May 25, 2011, the parties entered into an agreed temporary custody order providing for shared legal custody and shared 50/50 physical custody of Children. On that same day, Mother filed a petition for relocation to which Father filed a timely objection. On September 26, 2011, Mother filed a petition to modify custody.

Following a five day trial on February 6 and 7, 2012, and August 1, 2, and 3, 2012, and after consideration of the parties' post-trial motions, on November 27, 2012, the trial court entered a custody order. That order maintained the status quo, i.e., the parties continued to enjoy shared legal and physical custody of Children, and set out a detailed custody schedule. The shared physical custody schedule was ordered as follows: Father has custody of Children every Monday after school until drop off at school on Wednesday, and every other weekend. Mother has custody of Children every Wednesday after school until drop off at school on Friday, and every other weekend. The order also granted Mother's petition for relocation to Kutztown. Importantly, that order did not direct where the then-five year old Children would attend kindergarten the following year. Neither party took an appeal from the November 27, 2012 custody order.

On February 6, 2013, Mother filed a petition for special relief in which she requested that the trial court enter an order directing "that the children shall begin kindergarten at Kutztown Area School District, Kutztown Elementary School in August 2013." Trial Ct. Op., 10/4/13, at 2. On March 14, 2013, Father filed an answer and counterclaim to Mother's petition in which he requested that the court deny Mother's petition and "enter an order that the children shall be enrolled in and attend Hatfield Elementary School in the North Penn School District." Id.

On July 22, 2013, the trial court held a hearing on Mother's petition and Father's counterclaim. The court heard the testimony of Mother, her expert, Brenda Winkler, Ph.D., and Father. We adopt the trial court's recitation of the witness's testimony. See id. at 2-6. Following the hearing, on August 5, 2013, the trial court issued an order granting Mother's petition for special relief and denying Father's counterclaim. Father timely filed a notice of appeal on August 30, 2013. The trial court issued an order on September 4, 2013, directing Father to comply with Pa.R.A.P. 1925 within twenty-one days, and Father timely complied. On October 3, 2013, Mother filed a motion to quash this appeal.

We first address the motion to quash this appeal filed by Mother. Relying on In re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009), Mother argues that this appeal should be quashed because Father violated Pa.R.A.P. 1525(a)(2)(i) by failing to file his Rule 1925(b) statement concurrently with his notice of appeal as is required in children's fast track appeals.[1] Although Father did not file his concise statement with his notice of appeal, we note K.T.E.L. makes clear that a failure to file a 1925(b) statement concomitantly with the notice of appeal will result in a defective notice of appeal, but is not necessarily a basis for quashal. K.T.E.L., 983 A.2d at 747. Instead, whether this transgression results in quashal of the appeal should be determined on a case-by-case basis taking into consideration, among other factors, prejudice to the other parties in the case. Id. at 748.

Here, Father filed his statement on September 13, 2013, eight days after being ordered to do so by the trial court. The trial court filed a Rule 1925(a) opinion on October 4, 2013, in which it addressed the merits of the issues raised by Father. Mother argues that Father's failure to file his statement with his notice of appeal caused delay and prejudice to her interests. However, it does not appear that the trial court's issuance of a responsive opinion was unreasonably delayed or hampered in any way by Father's failure to initially comply with Rule 1925(a)(2)(i). Furthermore, because Father complied with the trial court's order directing him to file his Rule 1925(b) statement, Mother's motion to quash this appeal is denied. See J.P. ...


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