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S.C.B. v. J.S.B.

Superior Court of Pennsylvania

August 20, 2019

S.C.B.
v.
J.S.B. Appellant S.C.B. Appellant
v.
J.S.B. S.C.B. Appellant
v.
J.S.B.

          Appeal from the Order Entered April 5, 2018 In the Court of Common Pleas of Cumberland County Civil Division at No: 2016-CV-00825

          Appeal from the Order Entered September 12, 2018 In the Court of Common Pleas of Cumberland County Civil Division at No: 2016-CV-00825

          BEFORE: BOWES, J., OLSON, J., and STABILE, J.

          OPINION

          STABILE, J.

         S.C.B. ("Mother") and J.S.B. ("Father") cross-appeal from the order entered April 5, 2018, in the Court of Common Pleas of Cumberland County, awarding both parties shared legal custody, awarding Mother primary physical custody, and awarding Father partial physical custody, with respect to their son, I.W.B. ("Child"), born in August 2014. Mother also appeals from the order entered September 12, 2018, directing her to pay $500 in fees to Child's guardian ad litem ("GAL"), Samuel Andes, Esquire. After review, we vacate the orders and remand for further proceedings.

         This matter has a lengthy and tortuous procedural history. It began on February 11, 2016, when Mother filed a complaint requesting shared legal and primary physical custody of Child. The case culminated in a final custody order entered August 3, 2016, which awarded the parties shared legal custody and awarded Mother primary physical custody. The order awarded Father partial physical custody during the first, third, and, if available, fifth weekend of each month from Saturday at 9:00 a.m. until Sunday at 4:00 p.m., and during each Wednesday from 4:00 p.m. until 7:00 p.m. Father did not appeal but filed a motion for reconsideration on September 2, 2016.

         On November 7, 2016, the trial court entered an order modifying the August 3, 2016 custody order slightly. Once again, Father did not appeal the order but filed a motion for reconsideration on December 2, 2016. Then, on March 16, 2017, the court entered an order purportedly addressing both of Father's motions for reconsideration and modifying the order of November 7, 2016. Mother appealed, and a prior panel of this Court vacated the order on October 2, 2017. We held that the court lacked authority to act on Father's motions because it did not grant reconsideration expressly within the thirty-day appeal period following the entry of each order. See S.C.B. v. J.S.B., 179 A.3d 532 (Pa. Super. 2017) (unpublished judgment order).

         Meanwhile, Mother filed a petition for special relief on March 3, 2017, in which she requested, among other things, that the trial court order the parties to participate in a custody evaluation. The court entered an order on April 18, 2017, stating it would defer its decision on Mother's request for a custody evaluation until it received and reviewed a report from the GAL. On June 16, 2017, Father filed a motion requesting that the court deny Mother's petition. The court denied Father's motion on June 20, 2017, stating that its order of April 18, 2017, remained in effect.[1]

         On October 4, 2017, Father filed a petition for modification of custody, requesting shared legal and primary physical custody of Child. Mother filed a motion on November 2, 2017, requesting that the trial court conduct a hearing on her petition for a custody evaluation. On December 21, 2017, the court entered an interim order modifying the parties' custody award pursuant to the GAL's recommendation. Specifically, the order awarded Father partial physical custody on an alternating two-week schedule. The order awarded custody from the end of Father's workday on Friday until the start of his workday on Monday during the first week. The order awarded custody from the end of Father's workday on Wednesday until the start of his workday on Friday during the second week. In the order, the court also declined to delay the matter further in order to obtain a custody evaluation. Mother filed a notice of appeal from the interim order but later withdrew her appeal.

         The trial court conducted a hearing on the merits of the parties' custody case on March 8, 2018. The parties presented evidence addressing a variety of subjects. Most notably, the evidence focused on Father's complaint that the maternal grandparents babysit Child while Mother works, Mother's claim that Child suffers an excessive number of injuries while in Father's care, and Mother's contention that the parties should undergo a custody evaluation in order to investigate the injuries.

         With respect to Child's maternal grandparents, the record reveals that Mother has an unconventional work schedule and often works at night. Mother testified that eighty or ninety percent of the time she works some type of late shift, such as the 3:00 p.m. to 11:00 p.m. shift, or the 10:40 p.m. to 6:40 a.m. shift. N.T., 3/8/18, at 157. Accordingly, she relies on Child's maternal grandparents to babysit Child while she is at work. She stressed that Child is often asleep while she is working and that she prefers to work late shifts so she can spend as much time as possible with him during his waking hours. Id. at 152-54. In response, Father suggested that Child should be in his care while Mother is at work, explaining that he usually works from 6:30 a.m. until 3:30 p.m., and is available during the afternoons. Id. at 12, 18-21.

         As for Mother's claim that Child suffers an excessive number of injuries, she testified that he becomes hurt far more frequently while in Father's care than in her care, and that Father exhibits a "callous reaction" whenever she brings Child's injuries to his attention. Id. at 130. Mother referenced, for example, an incident during which Child injured his knee and had difficulty walking, and an incident during which he reported that his head hurt, saying, "dad hit me[.]" Id. at 133-35. In an effort to refute Mother's claims, Father presented the testimony of his friends, S.K. and M.P., who stated that Father does not pose a safety risk to Child. Id. at 195-96, 202.

         Finally, concerning Mother's request for a custody evaluation, the trial court heard the testimony of the parties' former co-parenting counselor, Ashley Milspaw, Psy.D., who recommended that a custody evaluation would be beneficial to help determine whether Mother is trying to alienate Child from Father, or whether she has "some justified concerns regarding the child's safety." Id. at 97. Father questioned the need for an evaluation, describing Mother's request as a "delay tactic." Id. at 82. He stated that he would be willing to undergo an evaluation if Mother paid for it. Id. at 28-29. He also accused Mother of trying to manipulate the outcome of the evaluation by contacting potential evaluators in advance and insisting that the evaluator should know she is the one providing the funds. Id. at 25-26, 77-78. This would be contrary to the GAL's proposal that Mother place the funds in escrow and that the GAL provide the funds to the evaluator. See id. at 217-18 (the GAL discussing the proposal). Mother denied these allegations, stating that she contacted only one potential evaluator in advance, before she knew the evaluator would become involved in the case, and did so because she "was not comfortable with the fact that thinking that [sic] a psychologist would violate their ethics . . . . so I called . . . to see if in fact anyone had ever escrowed money and then paid so that it was not known where the funds came from. And she said she had never done that in her experience." Id. at 118-29.

         After the hearing, on March 16, 2018, Mother filed motions to compel preschool attendance and for designation of child counselor/play therapist. In her motions, Mother requested that the trial court enter an order directing that Child attend a specific preschool to which Father objected, and an order designating one of three enumerated mental health professionals to address any potential behavioral issues or concerns relating to Child.

         On March 22, 2018, the trial court entered an interim order awarding Father partial physical custody of Child every other weekend from 4:00 p.m. on Friday until 7:00 p.m. on Sunday, every Tuesday from 4:00 p.m. to 7:00 p.m., and every week from Thursday at 4:00 p.m. until "the exchange Friday morning with Grandparents, at the location Grandparents choose." Interim Order of Court, 3/22/18, at 1. On April 5, 2018, the court entered an order indicating that it intended to render the March 22, 2018 interim order final. In an opinion accompanying the order, the court conducted an analysis of some, but not all, of the custody best interest factors listed at 23 Pa.C.S.A. § 5328(a). Specifically, the court addressed 23 Pa.C.S.A. § 5328(a)(1), (2), (3), (4), (11), (12), (13), and (16), but failed to address 23 Pa.C.S.A. § 5328(a)(2.1), (5), (6), (7), (8), (9), (10), (14), or (15). The court stated that it was incorporating by reference its prior analysis of the factors from its order of August 3, 2016. Trial Court Opinion, 4/5/18, at 4. The court also noted its finding in August 2016 that Father should receive increased custody of Child "as his parenting skills develop" but that Mother has "the far more developed infrastructure that . . . is in the best interest of the child." Id. On April 30, 2018, the court entered an order granting Mother's motions to compel preschool attendance and for designation of child counselor/play therapist. Both Mother and Father filed notices of appeal from the April 5, 2018 order on May 4, 2018, along with concise statements of errors complained of on appeal, and motions for reconsideration.[2]

         Subsequently, the GAL filed a motion for payment of fees on September 4, 2018. In his motion, the GAL averred that Mother had failed to pay her half of his fees, as directed by the trial court's order appointing him as Child's GAL. The court entered an order on September 12, 2018, directing Mother to pay the GAL within ten days. Mother, acting pro se, timely filed a notice of appeal from the September 12, 2018 order on October 11, 2018, along with a concise statement of errors complained of on appeal.[3], [4]

         Mother raises the following claims for our review regarding the April 5, 2018 order at Superior Court docket number 763 MDA 2018:

1.Did the [trial] court err in its final custody order when it failed to consider factors 5, 8, 9, 10, 14 and 15?
2.Did the [trial] court err by not giving weighted consideration to factors relative to the safety of []Child, insofar as Mother testified that Father has on multiple occasions returned [] Child with injuries?
3. Did the [trial] court err by relying on a standard custom and practice in fashioning its custody order?
4. Did the [trial] court err by denying Mother's request for a custody evaluation despite the fact that there was uncontroverted expert testimony that such an evaluation was necessary, and where Father claimed to have agreed to one anyway?

Mother's Brief (763 MDA 2018) at 4 (suggested answers omitted).

         Mother adds two more claims at Superior Court docket number 1168 MDA 2018, regarding the September 12, 2018 order:

I. Did the [trial] court violate [Mother's] due process rights when it ordered her to pay $500 to Mr. Andes, the [GAL], without taking evidence, argument, or trial?
II. Did the [trial] court commit an error of law and/or abuse[] its discretion when it ordered [Mother] to pay $500 to Mr. Andes without taking evidence, argument, or trial, especially since the Superior Court vacated the Order requiring her to pay $1, 500 in his fees and when Mr. Andes owes [Mother] a reimbursement?

         Mother's Brief (1168 MDA 2018) at 4 (suggested answers omitted). In addition, Father raises the following claims at Superior Court docket number 758 MDA 2018:

A. Did [the] trial court err by granting [the] maternal grandparents custody of the minor child when the maternal grandparents are not a party to the case and when that custodial time supersedes [Father's] custodial rights to the minor child when [Mother] is working and when [Father] is available to care for the minor child?
B.Did the trial court err in admitting photographic evidence over [Father's] objection when there was no testimony specifically pertaining to the photographs, the photographs were not provided in advance[, ] there was no opportunity to review the photographs and when there was no opportunity to cross examine [Mother] regarding her allegations concerning the photographs?

         Father's Brief at 2 (underlining and suggested answers omitted).

         We begin by addressing whether we possess jurisdiction to review the trial court's orders. "'[S]ince we lack jurisdiction over an unappealable order it is incumbent on us to determine, sua sponte when necessary, whether the appeal is taken from an appealable order.'" Gunn v. Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d ...


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