Argued, November 18, 2014
Appeal from the Order Entered October 14, 2014, of the Court of Common Pleas of Montgomery County, Family Division, No. 2010-06638. Before DANIELE, J.
Diane S. Tosta, Norristown, for appellant.
Steven R. Koense, Media, for appellee.
BEFORE: PANELLA, OLSONOLSON, and FITZGERALDFITZGERALD[*], JJ. FITZGERALDFITZGERALD, J. joined the Opinion. OLSONOLSON, J. filed a Concurring and Dissenting Opinion.
Initially, the trial court entered an order in this custody case that directed the court reporter to transcribe as the custody order 46 pages of trial transcript. Mother filed an appeal from the order directing transcription and we entered an order stating that an order directing the transcription of the notes of testimony is not an appealable order and directing the trial court to enter a separate custody order. The trial court complied with our directive. The custody order awarded shared legal custody of L.M. [Child], born to the parties in May 2007, primary physical custody to Mother, partial physical custody to Father, and made provisions for vacations and holidays. We affirm the custody order. We publish to clarify Rule 1915.10(b) of the Pennsylvania Rules of Civil Procedure to insure that the terms and intent of future custody orders are clear: We hold that, in order to be sufficiently specific to be enforced, an order of custody must be entered as a separate written order, or as a separate section of a written opinion.
Before we address the merits of this case, we must dispose of a question of procedure. The trial court conducted a hearing in this matter on April 14, 2014. The next day, the trial court delivered its decision in open court, stated the reasons for its decision, and rendered its order in the case. The trial court then entered an order on the following day directing the court reporter to transcribe the " Order Portion of the Notes of Testimony which shall constitute the Order of the Court." Order, filed 4/16/14. Mother filed a notice of appeal from the April 16 order. This Court responded to Mother's appeal by entering the following order:
This appeal has been taken from the April 1, 2014, Order in custody that directs the court reporter to transcribe the notes of testimony that shall constitute the order of the court. The April 1, order is not appealable or enforceable. See Pa.R.A.P. 102 (an order is defined as a judgment, decision, decree, sentence and adjudication). The rule does not define an order as the transcribed notes of testimony. See also Pa.R.A.P. 301(b) (every order shall be set forth on a separate document). Therefore, the trial court is directed to enter an order of court in this matter within fourteen (14) days, no later than June 6, 2014.
Superior Court Order, 5/23/14.
The transcribed notes of testimony from the hearing on April 14, 2014, a total of 46
pages, were entered on the trial court docket on May 20, 2014. According to the trial court, in its opinion, " [t]he order portion of the Notes of Testimony were transcribed and entered upon the docket on May 20, 2014. Therefore, the actual Custody order was entered upon the docket on May 20, 2014." Trial Court Opinion, 6/20/14, at 1.
The trial court did not enter a written order by the June 6, 2014, deadline set by this Court in the order entered May 23, 2014. However, after additional urging from this Court, the trial court finally entered a two-page order of custody on October 14, 2014.
In its opinion, the trial court explained why the transcript filed on May 20, 2014, was lengthy:
A Custody Order has to consider the 16 custody factors set forth at 23 Pa.C.S.A. § 5328(a). Therefore, in many cases, the Order discussing these custody factors will be lengthy. The reason the Order was 48 pages was because the [c]ourt addressed each of these custody factors. It would be error not to have addressed these factors.
Id., at 4.
Rule 1915.10 of the Pennsylvania Rules of Civil Procedure governs a trial court's decision and order and provides, in pertinent part:
Rule 1915.10. Decision. Order
(a) The court may make the decision before the testimony has been transcribed. The court shall state the reasons for its decision either on the record in open court, in a written opinion, or in the order.
(b) The terms of the order shall be sufficiently specific to enforce the order.
Our concern with the trial court's transcript is that it is not " sufficiently specific to enforce the order." The portion of the transcript in which the trial court recites its order begins on page twenty-one and covers the following twenty-seven pages. It includes exchanges between the trial court and the parties such as this:
THE COURT: Okay. Is it any issue for you, Dad, to get [Child] to school on Wednesday if I give you that overnight?
[Father]: Back to North Penn for school?
THE COURT: Yes.
[Father]: It will be difficult but I could try to work it out.
THE COURT: Okay. If you can work it out you will have [Child] overnight on Tuesday and take him to school on Wednesday.
N.T., 4/16/14, at 23.
It also includes this passage:
THE COURT: Dad will have alternate weekends. And those weekends will be alternated from . . . [sic] the one weekend will be alternated from Thursday after school until Monday morning. The other weekend will be alternated from Friday after school to Monday morning. And I am trying to keep this in line with having whole weekends instead of splitting weekends down the middle, which especially with summer coming can be very disruptive to the child's schedule.
[Attorney for Mother]: I was going to ask: After week four to week one, do you want to do it that way?
THE COURT: Here's what we are going to do. And I'm sorry, I am confusing
myself now. Every Tuesday dad is going to have overnight until Wednesday, take the child to school on Wednesday. Every other weekend he will have from Friday after school until Monday morning. In the opposite weeks, he is going to have Thursday overnight to Friday. And dad's weekend will ...