T.R. v. T.H. ( 2017 )

J-S27031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.R., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
T.H.,
Appellant No. 2751 EDA 2016
Appeal from the Order August 9, 2016
in the Court of Common Pleas of Philadelphia County
Family Court at No.: OC1600174
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 26, 2017
Appellant, T.H. (Father) appeals pro se from the order, entered by
mutual agreement, with Appellee, T.R. (Mother). The order granted Mother
primary physical custody and sole legal custody of T.H. (Child), born in June
of 2010.1 Father participated in the custody hearing by telephone because
he is incarcerated, after a conviction of first degree murder. However, he
was also represented at the hearing by counsel, who was physically present.
Father’s issue is waived because he failed to raise his sole question on
appeal in the trial court. Accordingly, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The order also granted Father weekly visits by telephone and letter writing
privileges.
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On appeal, Father claims for the first time that he only agreed to the
order because the custody master told him that any incarcerated parent
convicted of murder cannot be granted any custodial rights at all. (See
Father’s Brief, at 6).2 Father contends that the master gave him erroneous
advice3 because pursuant to 23 Pa.C.S.A. § 5329(b) custody is denied only if
the parent murdered the other parent.4 (See id., at 10-14). Father also
claims for the first time on appeal that the telephone connection was faulty
and, contrary to his agreement on the record at the time, now contends that
he missed key parts of the custody master’s colloquy.
____________________________________________
2
Mother appeared pro se at the custody hearing and did not file a brief in
this appeal.
3
Father ignores the fact that he was represented by independent counsel at
the hearing. Father tried to enlist hearing counsel to support his version of
events, or even represent him on this appeal. (See Father’s Brief, at Exhibit
“C”). Counsel apparently declined. We note that the record in this case is
exceptionally thin, and the complete circumstances of counsel’s appearance
and withdrawal are not readily apparent. Nevertheless, because Father
raises a question of law, and the necessary context of his claim is self-
evident, our review is not impeded.
4
Section 5329(b) provides, in relevant part:
Parent convicted of murder.─No court shall award
custody, partial custody or supervised physical custody to a
parent who has been convicted of murder under 18 Pa.C.S. §
2502(a) (relating to murder) of the other parent of the child who
is the subject of the order unless the child is of suitable age and
consents to the order.
23 Pa.C.S.A. § 5329(b).
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The purported pre-hearing conversation is not included, or even
referenced, in the certified record. Father argues that because the
conversation occurred before the master went on the record, the notes of
testimony are incomplete. He contends that if he had received correct
advice from the master he would have refused to enter into the custody
agreement unless he received partial custody and visitation rights. (See id.
at 14). He argues on appeal that the case should be remanded for a
consideration of the custody factors enumerated in 23 Pa.C.S.A. § 5328. We
disagree.
Father did not raise these issues in the trial court. Instead, he timely
appealed the custody order, including a single question in his statement of
errors, (see Pa.R.A.P. 1925(b)), which is identical to the question presented
on appeal:5
I. Whether, in a pure question of law, the [trial] court
abused its discretion in failing to interpret the plain language of
the Domestic Relations statute enacted under 23 Pa.C.S.
5329(b) that was prejudicial to Appellant where the [trial] courts
[sic] erroneous interpretation would necessitate a remand to
further develop the relevant enacted factors of 23 Pa.C.S.A. §
5328?
(Father’s Brief, at 4).
____________________________________________
5
The trial court filed a Memorandum in Lieu of Opinion on September 19,
2016. The single paragraph memorandum cites the notes of testimony of
the custody hearing generically and requests quashal, but does not explain
the reasons for its decision, address the issue presented or specify where
such reasons may be found. See Pa.R.A.P. 1925(a).
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“[T]he interpretation and application of a statute is a question of law
that compels plenary review to determine whether the court committed an
error of law. As with all questions of law, the appellate standard of review is
de novo and the appellate scope of review is plenary.” C.B. v. J.B., 65 A.3d
946, 951 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013) (citation
omitted). “Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a).
Here, Father never presented his issue directly to the trial court,
preventing that court from taking any action on the claim. Therefore,
Father’s sole issue is waived. See id. Accordingly, we will affirm. See In
re K.L.S., 934 A.2d 1244, 1246 (Pa. 2007) (when appellant has failed to
preserve issues for appeal, the issues are waived, and the trial court’s order
is properly affirmed.).
Moreover, the claim would not merit relief. “A party who has
acquiesced in an order or judgment will not later be heard to challenge it.”
Miller v. Miller, 744 A.2d 778, 783 (Pa. Super. 1999) (quoting Karkaria v.
Karkaria, 592 A.2d 64, 71 (Pa. Super. 1991). Furthermore, Father was
represented by independent counsel at the hearing, and cannot claim he had
to rely on the legal advice of the custody master.
Father also concedes the long settled principle that what is not of
record does not exist. (See Father’s Brief, at 16).
As we have often repeated, matters not appearing in the
certified record are not cognizable for appellate review; indeed,
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they are deemed not to have transpired. See Commonwealth
v. Wint, 730 A.2d 965, 967 (Pa. Super. 1999) (“For purposes of
appellate review, what is not in the certified record does not
exist.”).
Commonwealth v. Withrow, 932 A.2d 138, 140 (Pa. Super. 2007).
As a final point, Father’s legal analysis is erroneous. He emphasizes
23 Pa.C.S.A. § 5329(b) exclusively, in disregard of 23 Pa.C.S.A. § 5329(a),
which expressly provides for the consideration of any criminal homicide in
custody matters. See also In re Adoption of S.P., 47 A.3d 817, 830 (Pa.
2012) (holding inter alia that incarceration, while not a litmus test for
termination of parental rights, can be determinative of question of whether a
parent is incapable of providing essential parental care, control or
subsistence).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2017
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