N.G. v. C.G. Appeal of: N.G. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
C.G. :
:
: No. 1941 MDA 2015
Appeal from the Order Entered October 9, 2015
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2011-CV-04775-CU
BEFORE: GANTMAN, P.J., PANELLA, J. and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 22, 2016
N.G. (Father) appeals pro se from the order entered October 9, 2015,
in the Court of Common Pleas of Dauphin County, which ordered him to
submit to a psychological evaluation in preparation for a child custody trial.
After careful review, we quash the appeal.
The trial court summarized the extensive factual and procedural
history of this matter as follows.
The parties [Father] and C.G. ([M]other) were formerly
married and are the parents of one daughter, E.G. [(Child)]
(DOB 9/2010). They separated on April 30, 2011, following an
incident of domestic abuse committed by Father. . . .
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On April 10, 2015, [F]ather filed a petition for contempt
and modification of the custody order.[1] He sought to hold
[M]other in contempt for not providing contact information for
the daycare/babysitter chosen by [M]other as of August 2014,
not initiating phone calls to him over a forty-day period while he
was in India, refusing to make the child available to attend his
wedding in India, not telling [F]ather the child was enrolled in
dance class or inviting him to a class performance, and refusing
to make the child available for his previously scheduled
weeklong vacation from April 25 through May 1, 2015. He [also]
sought to modify custody to alternating weeks or a 4-3-3-4
schedule. While that petition was pending [F]ather filed, on April
16, 2015, an emergency petition for special relief raising issues
of his vacation time not being honored, and other de minimis
issues about the child’s dental care and daycare. On April 17,
2015, the late Hon. Bernard Coates denied his petition because it
raised no emergency claims. Undeterred, [F]ather filed another
emergency petition for special relief [on] April 27, 2015, which
Judge Coates denied April 28, 2015, due to lack of any
emergency and directed the matter be scheduled through our
normal custody conciliation procedure[.] . . .
On July 28, 2015, [F]ather filed three more
petitions/applications that were assigned to [the trial court]: (1)
a petition for contempt and modification seeking to hold
[M]other in contempt for failing to exchange custody on July 18,
allegedly preventing him from having the child for a previously
scheduled week-long vacation and again seeking to change the
physical custody schedule to alternating weeks or a 4-3-3-4
schedule; (2) an emergency petition for special relief seeking
that the child spend rescheduled vacation time with him; and (3)
an application for emergency relief seeking that the child be
enrolled in private Kindergarten.
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1
Father requested modification of the order entered November 17, 2011, as
previously modified by orders entered April 30, 2013, and November 25,
2014. These orders awarded Mother primary physical custody of Child and
awarded Father partial physical custody of Child. In addition, the orders
awarded Mother sole legal custody with respect to all decisions regarding
Child’s education and daycare, and awarded the parties shared legal custody
with respect to all other decisions.
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Father’s petition for contempt and modification was
scheduled for conciliation [on] August 5, 2015, to be heard along
with [F]ather’s April 10, 2015 petition for contempt and
modification. Concerning the emergency petition for special relief
(vacation time), following a telephone conference, [the trial
court] issued an order [on] July 29, 2015, granting [F]ather’s
request for rescheduled vacation time with the child from August
1-8, 2015. . . .
Conciliation failed to resolve the issues raised by [F]ather
in his April 10 and July 28, 2015 contempt and modification
petitions, and thus, [the trial court] scheduled a hearing on
October 8, 2015. Before that hearing could be held, [F]ather
filed a third contempt petition September 8, 2015, claiming
[M]other had willfully violated Paragraph 10 of the initial custody
order by not asking [F]ather if he wanted to take care of the
child when her school is closed. As noted above, Paragraph 10,
concerning custody arrangements when the daycare is closed /
babysitter contact information, was stricken in its entirety from
the custody order by [the Honorable Scott] Evans [on]
November 25, 2014.
***
On October 8, 2015, [the trial court] held a hearing limited
to the various contempt allegations filed by [F]ather. . . .
Trial Court Opinion, 1/8/2016, at 1-6 (footnote omitted).
Following the hearing, on October 9, 2015, the trial court entered the
order complained of on appeal, in which it directed Father to submit to a
psychological evaluation pursuant to Pa.R.C.P. 1915.8(a). 2 Father filed a
____________________________________________
2
Rule 1915.8(a) provides as follows, in relevant part.
(a) The court may order the child(ren) and/or any party to
submit to and fully participate in an evaluation by an appropriate
expert or experts. The order, which shall be substantially in the
(Footnote Continued Next Page)
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petition for reconsideration of the court’s order on October 29, 2015, which
the trial court denied. Father timely appealed.3
Father now raises the following issues for our review.
1. Did the court abuse its discretion by ordering a psychological
evaluation on Father on October 9, 2015, even though the other
parent did not request it, based on a phone call Appellant made
to Derry Township Police in August 2014 to request their
assistance with the Goddard School and a phone call Appellant
made to Dauphin County Children & Youth in May 2015
expressing concern about his daughter’s well-being while she
was with her mother ignoring the fact that Father has been
exercising non-supervised custody since May 2011?
2. Did the court abuse its discretion by ordering a psychological
evaluation on Appellant on October 9, 2015 even though an
appeal from an Order had been taken and was pending before
the Supreme Court of Pennsylvania and this was done during a
contempt hearing to address Mother’s contempt of custody order
with no prior notice to Father?
Father’s brief at 6 (suggested answers omitted).
_______________________
(Footnote Continued)
form set forth in Rule 1915.18, may be made upon the court's
own motion, upon the motion of a party with reasonable notice
to the person to be examined, or by agreement of the parties.
The order shall specify the place, manner, conditions and scope
of the examination and the person or persons by whom it shall
be made and to whom distributed. . . .
3
Father violated Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise
statement of errors complained of on appeal at the same time as his notice
of appeal. However, both this Court and the trial court entered orders
directing Father to file a concise statement. Father timely complied with both
orders by filing a concise statement on November 30, 2015. We have
accepted Father’s concise statement pursuant to In re K.T.E.L., 983 A.2d
745, 748 (Pa. Super. 2009) (holding that an appellant’s failure to comply
strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver of her claims, as
there was no prejudice to any party).
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Before reaching the merits of Father’s issues, we first must consider
whether the October 9, 2015 order was appealable. “‘[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 505, 508 (Pa. Super. 2009) (quoting Kulp v. Hrivnak, 765 A.2d 796,
798 (Pa. Super. 2000)).
“An appeal lies only from a final order, unless permitted by rule or
statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013).
Generally, a final order is one that disposes of all claims and all parties. See
Pa.R.A.P. 341(b). “[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.” G.B. v. M.M.B., 670
A.2d 714, 720 (Pa. Super. 1996) (footnote omitted).
Here, our review of the record confirms that the October 9, 2015 order
directing Father to submit to a psychological evaluation is not a final order.
At the conclusion of the October 8, 2015 contempt hearing, the trial court
stated unequivocally that it had not yet resolved the parties’ custody
dispute, and that a full custody trial would be necessary. See N.T., Hearing,
10/8/2015, at 66 (“It looks like we are not going to have time for our
pretrial conference and clearly we are not going to settle the case and we
are going to have to schedule it for trial.”). Following the hearing, the court
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entered an order finding that Mother was “technically in contempt” of the
parties’ prior custody orders, but that Mother’s contempt was minor, and did
not warrant the imposition of sanctions. Neither the court’s contempt order,
nor the order complained of on appeal, did anything to modify the parties’
custody arrangement. Further, the court’s contempt order provided that,
“[t]he custody trial scheduled in the above-captioned matter will be
continued based upon the necessity for psychological evaluations, gathering
of other information, and perhaps preparation of seven days of prior
testimony before another judge.” Order, 10/8/2015. Thus, it is clear that the
court did not enter the October 9, 2015 order after completing its hearings
on the merits, and that the court did not intend the order to constitute a
complete resolution of the custody claims pending between the parties.
Additionally, we observe that the October 9, 2015 order is not
appealable pursuant to the collateral order doctrine. See Pa.R.A.P. 313(a).
“A collateral order is an order separable from and collateral to the main
cause of action where the right involved is too important to be denied review
and the question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).
We find that this matter is controlled by Miller v. Steinbach, 681
A.2d 775 (Pa. Super. 1996). There, the appellant father attempted to appeal
from an order directing him “to submit to and pay for psychological
evaluations” pursuant to Pa.R.C.P. 1915.8. Id. at 777. The appellant father
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argued that the trial court in that case violated his right to due process by
requiring him to pay for the evaluations. See id. at 778.
A panel of this Court quashed Father’s appeal. The Court concluded the
order was not final, and failed to meet the requirements of the collateral
order doctrine. See id. at 777. The Court reasoned as follows.
Under this test, we find that the order issued by the lower court
was not appealable. While appellant’s right is extremely
important and deserves consideration, we do not find that the
order was separable and collateral to the main cause of action.
Appellant filed a petition for partial custody of his child. The
court ordered that he undergo and pay for psychological
evaluations before the court would resolve the custody issue. In
effect, the issue concerning the psychological evaluations is
intertwined with the issue of whether appellant should be
granted partial custody of his minor child.
In addition, we find that the question presented in appellant’s
appeal is not such that if review is postponed until final
judgment in the case, the claimed right will be irreparably lost.
Appellant’s argument that he was denied due process by the
lower court’s order that he pay for the psychological evaluations
can be presented on appeal once the lower court has issued a
final order on the matter. . . .
Id. at 778.
Here, the record reveals that Father’s mental health is very much in
question, and that a psychological evaluation will be critical to the trial
court’s assessment of what custody arrangement will be in Child’s best
interest.4 Thus, pursuant to Miller, the October 9, 2015 order is not
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4
For example, Mother testified at length during the October 8, 2015
contempt hearing that Father engages in confrontational and accusatory
(Footnote Continued Next Page)
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separable from, and collateral to, the main cause of action is this case, and
therefore fails to meet the requirements of the collateral order doctrine.5
See Price v. Simakas Co., Inc., 133 A.3d 751, 755 (Pa. Super. 2016)
(“[E]ach prong of the collateral order doctrine must be clearly present before
an order may be considered collateral.”) (internal quotation marks omitted).
Accordingly, the subject custody order is not a final order, nor is it
appealable as a collateral order.6 We are without jurisdiction to address
Father’s claims, and the appeal must be quashed.
_______________________
(Footnote Continued)
behavior, which has caused several childcare providers to refuse to care for
Child. See N.T., Hearing, 10/8/2015, at 61-63.
5
We acknowledge that a panel of this Court held in In the Matter of T.R.,
665 A.2d 1260, 1263 (Pa. Super. 1995), reversed on other grounds, 731
A.2d 1276 (Pa. 1999), that an order requiring a psychological evaluation was
appealable pursuant to the collateral order doctrine. However, T.R. was a
dependency matter and did not involve an order for a psychological
evaluation pursuant Pa.R.C.P. 1915.8(a). Because T.R. can be distinguished
from this case, and because the facts of Miller are far more similar, we
conclude that we are bound by Miller.
6
We observe also that the order is not an interlocutory order appealable as
of right, pursuant to Pa.R.A.P. 311, and that Father did not attempt to bring
this appeal before this Court as an interlocutory appeal by permission
pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S.A. § 702.
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2016
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