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J.P. v. J.S.

Superior Court of Pennsylvania

July 9, 2019

J.P.
v.
J.S. Appellant

          Appeal from the Order Entered January 2, 2019 In the Court of Common Pleas of Philadelphia County Family Court at No(s): 0C121184.

          BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

          OPINION

          MURRAY, J.

         J.S. (Mother), in her words, "appeals to the Superior Court of Pennsylvania from the Custody Order entered in this matter on January 2, 2019, motion to reconsider denied with amendments January 29, 2019." Mother's Notice of Appeal, 2/14/19. After careful review of the convoluted procedural history preceding this appeal, as well as prevailing legal authority, we quash.

         Instantly, Mother challenges the trial court's award of primary physical custody of the parties' eight-year old daughter (Child) to J.P. (Father), and the court's attendant decision permitting Father to relocate with Child from Philadelphia to Montgomery County.

         Mother filed a timely pro se petition for reconsideration on January 7, 2019, in which Mother alleged that the trial court erred in the "evaluation of the evidence presented at the hearing. Mother requested that [the trial court] restore shared physical custody and order that the Minor Child continue to attend school in Philadelphia." Trial Court Opinion, 3/13/19, at 5.

         Mother subsequently retained counsel, who a week later, on January 14, 2019, entered her appearance and filed a motion to modify custody on Mother's behalf.[1] On January 29, 2019, the trial court entered an order denying reconsideration, and the corresponding docket entry reads: "RECONSIDERATION DENIED. NOTICE GIVEN UNDER RULE 236. MOTHER'S PETITION FOR RECONSIDERATION DENIED WITHOUT A HEARING. SEE FOR DETAILS." The trial court's order denying reconsideration reads, in part:

MOTHER SEEKS RECONSIDERATION OF OUR ORDER OF JANUARY 2, 2019 GRANTING [FATHER'S] REQUEST TO RELOCAT[E] AND GRANTING FATHER PRIMARY PHYSICAL CUSTODY. THIS PETITION FOR RECONSIDERATION WAS FILED WITHOUT THE ASSISTANCE OF COUNSEL, WHICH IS MOTHER'S PEROGATIVE.
UPON EXAMINATION OF MOTHER'S REASONS FOR FILING THE PETITION AND CONSIDERATION OF MOTHER'S ARGUMENTS FOR RECONSIDERATION, WE DENY, WITHOUT A HEARING, THE PETITION, BUT AMEND OUR OPINION TO CORRECT AND CLARIFY THE RECORD FOR THE FOLLOWING REASONS: . . .

Order, 1/29/19, at 1 (emphasis added).

         The trial court order then listed four paragraphs explaining: 1) regardless of Mother's living situation, "both parents perform their parental duties and attend to the daily needs of minor child"; 2) the court's choice of school enrollment "better suits" Child's "needs at this time"; 3) the court erroneously found that Mother missed Child's dance recital when "it was Father who missed a dance recital," but "we nevertheless conclude that Father is more likely to ensure the minor child will attend extracurricular activities that she is involved in"; and 4) despite Father working two jobs, Child's "best interests would be served by granting primary custody to Father during the school year." Id. at 1-2.

         The order also specified that it "did not resolve Mother's petition to modify custody filed on January 14, 2019, which is scheduled for a custody master's event on February 7, 2019, at 2:00 P.M., which will proceed as scheduled." Id. at 2. The docket reflects "EVENT CANCELLED" on February 7, 2019. On February 14, 2019, Mother filed this appeal. The trial court issued an opinion on March 13, 2019.

         We must address the procedural posture leading up to this appeal. The January 2, 2019 order awarding primary physical custody to Father and permitting him to relocate from Philadelphia to Montgomery County was a final order because a custody order is final "after the trial court has completed its hearings on the merits and the resultant order resolves the pending custody claims between the parties." G.B. v. M.M.B., 670 A.2d 714, 715 (Pa. Super. 1996) (en banc). Judge Beck, writing for the en banc panel, explained:

Based on the case law . . . and the important policy concerns implicated in custody proceedings, we hold that a custody order will be considered final and appealable only if it is both: 1) entered after the court has completed its hearings on the merits; and 2) intended by the court to constitute a complete resolution of the custody claims pending between the parties. We conclude that this holding will protect the child from the protraction of custody litigation through repetitive appeals while still allowing prompt and comprehensive review of custody determinations. It will also support judicial economy and efficiency and uphold the integrity of the trial court's process in deciding custody matters. On the one hand, to permit piecemeal appeals subjects the child to the uncertainties of ongoing litigation. A custody proceeding, whether on the trial or the appellate level, threatens a child's stability. On the other hand, a custody decision once finally made must be subject to review. Drawing a bright line by which finality may be determined will encourage judicial economy and efficiency by making it clear both to litigants and to trial courts when the appellate process may properly be invoked. Our holding also serves to uphold the ...

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