Walter, F. v. Stoltenberg, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FREDERICK WALTER, II : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CASSANDRA R. WHITMORE A/K/A : No. 973 WDA 2022
CASSANDRA R. STOLTENBERG :
Appeal from the Order Dated July 27, 2022
In the Court of Common Pleas of Venango County Civil Division at No(s):
No. 1362-2011
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 3, 2023
Frederick Walter, II (“Father”)1 appeals, pro se, from the order denying
his motion for a hearing (“Motion for Hearing”) pursuant to Sections 5329 and
5329.1 of the Child Custody Law, 23 Pa.C.S. §§ 5329, 5329.1, to assess
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* Retired Senior Judge assigned to the Superior Court.
1 Pursuant to Rule of Appellate Procedure 904(b)(1), we use the parties’
names in the caption “as they appeared on the record of the trial court at the
time the appeal was taken.” Pa.R.A.P. 904(b)(1). “In an appeal of a custody
action where the trial court has used the full name of the parties in the caption,
upon application of a party and for cause shown, an appellate court may
exercise its discretion to use the initials of the parties in the caption based
upon the sensitive nature of the facts included in the case record and the best
interest of the child.” Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907(a), Note.
Neither party has applied to this Court for the use of initials in the caption.
We will, however, refer to the minor involved in this custody dispute by her
initials or as “Child” so as to protect her identity.
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whether he or Cassandra R. Whitmore (“Mother”)2 posed a threat of harm to
their daughter, C.Y.W., born in 2008 (“Child”). Father also challenges two
other orders in this appeal, the first of which denied his motion for recusal and
the second of which denied his motion to vacate the appointment of counsel
for Mother. For the reasons set forth below, we affirm.
On November 2, 2011, Father filed a complaint seeking custody of Child.
On December 14, 2011, a custody order was filed granting Father shared legal
and physical custody of Child. On April 19, 2018, Father filed a petition for
modification of the custody order alleging that Mother had not allowed him to
have contact with Child since 2013. After a custody conciliation conference,
the trial court filed orders adopting the conciliator’s report and
recommendations, scheduling a hearing to be held pursuant to Section 5329,3
and appointing legal counsel for Child.
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2 Mother was formerly known as Cassandra R. Stoltenberg.
3 As relevant in this matter, Section 5329 provides as follows:
(a) Offenses.--Where a party seeks any form of custody, the court
shall consider whether that party or member of that party’s household
has been convicted of or has pleaded guilty or no contest to any of the
offenses in this section or an offense in another jurisdiction substantially
equivalent to any of the offenses in this section. The court shall consider
such conduct and determine that the party does not pose a threat of
harm to the child before making any order of custody to that party when
considering the following offenses:
* * *
18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
(Footnote Continued Next Page)
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A hearing was held on August 1, 2018, at which Father, Mother, and
Child’s advocate appeared. At the hearing, Father stated that he is currently
incarcerated in a state correctional institution relating to his 2016 convictions
for aggravated indecent assault relating to two victims. N.T., 8/1/18, at 6-8.4
He identified one of the victims as the daughter of his ex-girlfriend and the
other victim as a “stranger.” Id. at 6. Father received an aggregate sentence
of 14-to-30 years’ imprisonment. Id. at 2, 8. He also was declared a sexually
violent predator, and he is subject to lifetime registration under the Sexual
Offender Registration and Notification Act.5 Id. at 6-7. Father stated that he
was listed to participate in sex offender treatment, but that the service is not
usually offered until the prisoner is much closer to their release date. Id. at
7-8. Additionally, testimony was presented that Father was convicted of
driving under the influence (“DUI”) and possession of a controlled substance
in 2009. Id. at 2. Mother also addressed an investigation of her and her
husband for endangering the welfare of a child by the Venango County District
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* * *
75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or
utilizing drugs).
* * *
23 Pa.C.S. § 5329(a).
4 We note that, while the copy of the referenced transcript states that it was
for a hearing held on July 8, 2021, it is apparent from our review of the record
and the corresponding August 9, 2018 order that this transcript in fact
captures the testimony of the August 1, 2018 hearing.
5 42 Pa.C.S. §§ 9799.10–9799.75.
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Attorney, which Mother stated did not result in charges being filed pursuant
to an agreement that Child maintain an open case with the Venango County
Children, Youth, and Family Services (“CYFS”) for a period of 6 months. Id.
at 8-9.
On August 9, 2018, the trial court issued an order dismissing Father’s
petition to modify; the court found that Father poses a threat of harm to Child
and no form of custody over Child should be awarded to Father pursuant to
Section 5329. Order, 8/9/18, at 2. In addition, the court determined that
Mother does not pose a threat of harm to Child and ordered that she be
permitted to maintain custody pursuant to the previously operative custody
order. Id. at 2-3.
On August 20, 2021, Father filed a petition for modification of the August
9, 2018 custody order, asserting that he did not receive service of the 2018
custody order, there was no evidence that he posed a threat of harm to Child,
and that Mother had abused Child since the prior order was issued. After a
conciliation conference at which both parents participated and upon the
recommendation of the conciliator to deny Father’s request for modification of
custody, the trial court entered an order on January 21, 2022 denying the
August 20, 2021 petition.
On January 28, 2022, Father filed the Motion for Hearing, in which he
requested a hearing under Section 5329 to determine whether he continued
to pose a threat of harm to Child; Father asserted that the trial court’s August
9, 2018 order was not supported by any evidence of his danger to Child, and
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he did not have an opportunity to appeal that order because he was not served
with it. In addition, Father claimed that a Section 5329 hearing should be
held as to Mother based upon a 2020 DUI conviction and that a Section
5329.16 hearing should be convened based upon the CYFS investigation of
Mother.
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6 This statute provides, in relevant part:
(a) Information sharing.--In accordance with section 6340(a)(5.1)
(relating to release of information in confidential reports), where a party
seeks any form of custody, subject to the examination of the parties,
the court shall determine:
(1) With respect to child abuse under Chapter 63 (relating to child
protective services) or a child who is a victim of a crime under 18
Pa.C.S. (relating to crimes and offenses) which would constitute
abuse under Chapter 63:
(i) Whether the child is the subject of an indicated or
founded report of child abuse.
(ii) Whether a party or a member of the party’s household
has been identified as the perpetrator in an indicated or
founded report of child abuse.
(iii) The date and circumstances of the child abuse.
(iv) The jurisdiction where the child abuse investigation took
place.
(2) With respect to child protective services or general protective
services under Chapter 63:
(i) Whether a party or a member of a party’s household has
been provided services.
(ii) The type of services provided.
(iii) The circumstances surrounding the provision of
services.
(Footnote Continued Next Page)
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On February 9, 2022, the Honorable Thomas K. Kistler, Senior Judge of
the trial court, scheduled a hearing on the Motion for Hearing, which was
ultimately rescheduled to August 3, 2022. On April 19, 2022, the Honorable
Marie T. Veon, President Judge of the trial court, entered an order appointing
private counsel to represent Mother in this matter. On July 25, 2022, Mother,
through counsel, filed a motion to quash Father’s Motion for Hearing. In the
motion to quash, Mother argued that (1) Father was seeking to relitigate the
August 9, 2018 Section 5329 finding against him, which was barred by res
judicata; (2) Mother was not convicted of a DUI offense as she entered into
an accelerated rehabilitative disposition (“ARD”) program to resolve the
charges; and (3) there was no basis to have a Section 5329.1 hearing at that
time as there was no pending custody action.
On July 27, 2022, Judge Veon granted Mother’s motion to quash, denied
Father’s Motion for Hearing, and cancelled the scheduled hearing. On August
1, 2022, Father filed objections to the motion to quash and two additional
motions: a motion seeking President Judge Veon’s recusal and a motion to
vacate the order appointing counsel for Mother. On August 5, 2022, Judge
Veon issued an order denying the motion for recusal and the motion to vacate
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(iv) The status of services.
(v) The date the services were provided.
(vi) The jurisdiction where the services were provided.
23 Pa.C.S. § 5329.1(a).
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the appointment of counsel for Mother and ruling that Father’s objections to
the motion to quash were moot as they were filed after the court’s rulings on
the Motion for Hearing. Father thereafter filed a timely notice of appeal from
the July 27, 2022 order denying his Motion for Hearing.7
Father raises the following issues on appeal:
1. Did the trial court violate due process when it dismissed
[Father’s] Motion for a Hearing pursuant to 23 [Pa.C.S.] § 5329
and § 5329.1 and canc[e]lled the previously scheduled hearing?
2. Did the trial court err as a matter of law when it strictly applied
the legal doctrine of res judicata to a child custody case, thereby
rendering the custody order final?
3. Did the trial court err when it appointed [Mother] free legal
representation, sua sponte, when [Mother] did not request
counsel, did not apply for in forma pauperis status, does not
qualify for in forma pauperis status, and has no right to counsel in
a private civil custody matter?
4. Did President Judge Marie T. Veon err when she disregarded
[Father’s] motion to recuse as moot based on her improperly
granting [Father’s] motion to quash in violation of due process?
Father’s Brief at 2 (suggested answers and unnecessary capitalization
omitted).
This Court reviews trial court orders in custody matters under an abuse
of discretion standard. Graves v. Graves, 265 A.3d 688, 693 (Pa. Super.
2021). We must accept the trial court’s findings that are supported by
competent evidence of record, as our appellate role does not include making
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7 Father filed his concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b) on September 16, 2022. The trial court filed its Pa.R.A.P.
1925(a) opinion on September 27, 2022.
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independent factual determinations. Id. “We may reject the conclusions of
the trial court only if they involve an error of law, or are unreasonable in light
of the sustainable findings of the trial court.” Id. (citation omitted).
Father first argues that the trial court violated his due process rights by
cancelling the already scheduled hearing concerning his Motion for Hearing
and ruling on this motion without first reviewing Father’s objections to
Mother’s motion to quash. Noting that custody orders are always subject to
modification by the courts, Father argues that the question of custody has
been raised in the present litigation, contrary to the trial court’s reasoning in
its Pa.R.A.P. 1925(a) opinion. Father contends that Section 5330 of the Child
Custody Law, 23 Pa.C.S. § 5330, mandated that the trial court address the
issue of Mother’s recent ARD resolution of DUI charges under Section 5329,
regardless of whether a conviction was obtained.8 Father further asserts that
the trial court violated due process by not holding a hearing to revisit its
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8 Section 5330 provides, in relevant part:
(a) Expedited hearing.--A party who has obtained information under
42 Pa.C.S. § 1904 (relating to availability of criminal charge information
in child custody proceedings) or otherwise about a charge filed against
the other party for an offense listed under section 5329(a) (relating to
consideration of criminal conviction) may move for a temporary custody
order or modification of an existing custody order. The court shall hold
the hearing under this subsection in an expeditious manner.
(b) Risk of harm.--In evaluating any request under subsection (a), the
court shall consider whether the party who is or has been charged with
an offense set forth in section 5329(a) poses a risk of physical,
emotional or psychological harm to the child.
23 Pa.C.S. § 5330(a), (b).
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August 9, 2018 determination that he posed a threat of harm to Child as a
result of his aggravated indecent assault convictions where that determination
was not based upon evidence of record. Finally, Father argues that the court
should have convened a hearing pursuant to Section 5329.1 as CYFS has only
recently closed an investigation of potential abuse of Child by Mother.
“[P]rocedural due process requires, at its core, adequate notice,
opportunity to be heard, and the chance to defend oneself before a fair and
impartial tribunal having jurisdiction over the case.” S.T. v. R.W., 192 A.3d
1155, 1161 (Pa. Super. 2018) (citation omitted). “Formal notice and an
opportunity to be heard are fundamental components of due process when a
person may be deprived in a legal proceeding of a liberty interest, such as
physical freedom, or a parent’s custody of her child.” J.M. v. K.W., 164 A.3d
1260, 1268 (Pa. Super. 2017) (en banc) (citation omitted); see also S.T.,
192 A.3d at 1161. “Due process is flexible and calls for such procedural
protections as the situation demands.” S.T., 192 A.3d at 1161 (citation
omitted).
In its opinion, the trial court stated that dismissal of the Motion for
Hearing was appropriate because Father did not have grounds to request a
hearing under the Child Custody Act. Trial Court Opinion, 9/27/22, at 3-4.
The court first reasoned that a Section 5329 hearing was not necessary
because Mother had resolved her DUI charges through participation in an ARD
program, which does not result in a conviction. Id. at 3. Furthermore, the
trial court noted that Section 5329.1 requires that the court address potential
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child abuse by a party in cases “where a party seeks any form of custody” of
a child. Id. (quoting 23 Pa.C.S. § 5329.1(a)). As there was “no current
pending custody litigation” and Father was “not permitted any form of
custody” as a result of the trial court’s August 9, 2018 and January 21, 2022
rulings, the court opined that the denial of a Section 5329.1 hearing was
proper. Id. at 4.
We agree with the trial court that no hearing was necessary before
Father’s Motion for Hearing was denied, albeit we do so on somewhat different
grounds than those espoused by the lower court.9 In re A.J.R.-H., 188 A.3d
____________________________________________9 We note our concern with the trial court’s reasoning in its Pa.R.A.P. 1925(a)
opinion on two issues. First, we caution the trial court that the fact that Mother
resolved her DUI charges through an ARD process does not mean that this
issue is insulated from review in this custody matter. While the Child Custody
Law is silent on the question of whether enrollment in an ARD program is
equivalent to a conviction for purposes of Section 5329(a), this Court has
recently observed that the ARD process is a structured, intensive process
accompanied by numerous due process protections and ARD of DUI charges
is effectively treated the same as a conviction for sentencing purposes. See
Commonwealth v. Moroz, 284 A.3d 227, 230-32 (Pa. Super. 2022) (en
banc). In addition, this Court has previously endorsed the view that a parent’s
acceptance into an ARD program may be considered by the trial court in
connection with a custody dispute. See DeNillo v. DeNillo, 535 A.2d 200,
202 (Pa. Super. 1987) (holding that father’s ARD resolution of indecent
exposure charges was relevant to dispute over custody of child). Furthermore,
as explained elsewhere in this decision, Section 5330 provides that a trial
court may consider the fact that a party to a custody action was charged with
a Section 5329(a) offenses in connection with a petition for modification of
custody or a request for a temporary custody order. 23 Pa.C.S. § 5330(a).
Furthermore, to the extent the trial court’s opinion may be read as stating
that Father is prevented from ever obtaining any form of custody of Child
based upon the court’s August 9, 2018 and January 21, 2022 rulings denying
Father’s visitation requests, see Trial Court Opinion, 9/27/22, at 4 (stating
(Footnote Continued Next Page)
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1157, 1175-76 (Pa. 2018) (appellate court may affirm the trial court on any
basis that is supported by the record). We initially note that Father’s Motion
for Hearing is in large part an effort to relitigate his April 19, 2018 and August
20, 2021 petitions for modification, which the trial court fully resolved against
him in its respective August 9, 2018 and January 21, 2022 orders. No appeal
was taken from those two prior final orders. Notwithstanding the inherent
authority of the trial court to amend custody rulings, this Court lacks the
authority to address the earlier final orders in this appeal. See
Commonwealth v. Fill, 202 A.3d 133, 138 (Pa. Super. 2019) (pursuant to
Pa.R.A.P. 903(a), party waives appellate review of any final order where notice
of appeal is not filed within 30 days of order’s entry).10
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that, as a result of prior orders, Father “is not permitted any form of custody
of [] Child”), we cannot endorse this view. Custody orders are always subject
to modification when necessary to ensure the best interests of the child. See
K.D. v. E.D., 267 A.3d 1215, 1224 (Pa. Super. 2021) (“[A] custody order may
be modified at any time, provided the modification is in the best interest of
the child.”) (emphasis omitted); J.R.M. v. J.E.A., 33 A.3d 647, 649 n.1 (Pa.
Super. 2011) (“[C]ustody orders are always subject to modification if new
circumstances arise that affect the best interest of the child[.]”); but see
K.D., 267 A.3d at 1225-26 (noting that “collateral estoppel will, in fact, bar
the re-litigation of” a previously adjudicated fact in a custody case but that
any such prior finding will not preclude a trial court from then modifying
custody “based upon contemporary evidence that demonstrate[s] that
modification served the bests interests of the” child).
10 Father asserts in his brief that he did not file appeals from the August 9,
2018 and January 21, 2022 orders because he was not promptly served with
the August 9, 2018 order and he was hindered from conducting legal research
in his correctional facility due to limitations on law library access during the
COVID-19 pandemic. However, to the extent he sought to raise issues related
to the August 9, 2018 and January 21, 2022 orders in this Court, his only
(Footnote Continued Next Page)
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Furthermore, as the trial court explained in its opinion, Father was not
entitled to any relief because no request for modification of custody was
pending when the trial court ruled on the Motion for Hearing. In his motion,
Father requested that the trial court (1) reassess its earlier determination
under Section 5329 that he posed a threat of harm to Child; (2) assess
whether Mother poses a threat of harm to Child under Section 5329 as a result
of her ARD resolution of DUI charges; and (3) evaluate any danger to Child
as a result of CYFS’s investigation of Mother for potential child abuse pursuant
to Section 5329.1. Motion for Hearing, 1/28/22, at 5.
Section 5329 provides that “[w]here any party seeks any form of
custody, the court shall consider whether that party or member of that
party’s household has been convicted of or has pleaded guilty or no contest
to” the listed offenses. 23 Pa.C.S. § 5329(a) (emphasis added). Section
5329.1 similarly provides that “where a party seeks any form of custody,
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recourse was to seek nunc pro tunc relief to permit an untimely appeal. See
Green v. Trustee of University of Pennsylvania, 265 A.3d 703, 709 (Pa.
Super. 2021) (outlining requirements for litigant to obtain nunc pro tunc relief,
including prompt filing of document after the date it was due).
Father also argues that his Motion for Hearing was in effect a request for
reconsideration of the January 21, 2022 order and that Judge Kistler’s
February 9, 2022 order scheduling a hearing on the Motion for Hearing granted
reconsideration of the January 21, 2022 order. We disagree. Father did not
request reconsideration of the January 21, 2022 order in his Motion for
Hearing, nor did Judge Kistler grant Father any relief that could be interpreted
as involving reconsideration of that order. See Pa.R.A.P. 1701(b)(3)(ii) (trial
court may grant reconsideration by filing “an order expressly granting
reconsideration of such prior order” within the time prescribed for filing of
notice of appeal).
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subject to the examination of the parties, the court shall determine” the
circumstances surrounding an indicated or founded report of child abuse or
the provision of child protective services or general protective services related
to a party’s family. 23 Pa.C.S. § 5329.1(a) (emphasis added).
In S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014), this Court held
that the term “form of custody” as used in the Child Custody Act refers to the
seven types of custody listed in Section 5323(a) of the Act. Id. at 402 (citing
23 Pa.C.S. § 5323(a)); see also L.L.B. v. T.R.B., 283 A.3d 859, 863 (Pa.
Super. 2022); S.T., 192 A.3d at 1165. The types of custody listed in the
statute are: (1) shared physical custody; (2) primary physical custody; (3)
partial physical custody; (4) sole physical custody; (5) supervised physical
custody; (6) shared legal custody; and (7) sole legal custody. 23 Pa.C.S. §
5323(a); see also S.T., 192 A.3d at 1165. In S.W.D., we held that when a
trial court addresses a custody dispute that does not require the entry of an
award of a form of custody, the court is not required to comply with Section
5328(a), which requires that a court consider the best interest factors
delineated in that statute when “ordering any form of custody.” 23 Pa.C.S. §
5328(a); S.W.D., 96 A.3d at 402-04; (stating that “[n]ot every decision by a
trial court in a custody case . . . entails an award of a form of custody,” and
holding that court was not required to consider Section 5328(a) factors when
resolving dispute between parents involving place of child’s schooling); see
also L.L.B., 283 A.3d at 863-64 (court not required to address Section
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5328(a) factors when addressing discrete and ancillary issue of whether child
should receive COVID-19 vaccine).
Here, the Motion for Hearing sought only that the court conduct an
analysis of the potential threat of harm to Child by Mother and Father under
Sections 5329 and 5329.1 and these statutes expressly provide that they are
applicable where a “party seeks any form of custody.” 23 Pa.C.S. §§ 5329(a),
5329.1(a). However, Father did not seek an award of any form of custody of
Child in his Motion for Hearing, and there was no other request for an award
of a form of custody pending in the trial court at the time that it ruled on the
Motion for Hearing. Therefore, the trial court properly determined that it was
not required to conduct any analysis under the plain language of Sections
5329 and 5239.1.11 See A.M. v. J.L.H., No. 677 WDA 2020, 2021 WL
929954, at *4 (Pa. Super. filed March 11, 2021) (unpublished memorandum)
(holding that trial court was not required to evaluate mother’s boyfriend’s risk
to child under Section 5329 where court “was not considering whether to
award or modify a form of custody” and instead was only addressing discrete
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11 “It is axiomatic that the best indication of legislative intent is the plain
language of the statute.” Doe v. Franklin County, 174 A.3d 593, 605 (Pa.
2017); see also 1 Pa.C.S. § 1921(b) (“When the words of a statute are clear
and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.”).
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and ancillary issue of whether boyfriend could be present during mother’s
custody time).12
Father also references Section 5330 in his brief, arguing that, even if
the trial court could not have held a hearing under Section 5329 because
Mother was not convicted of DUI, it should have conducted a Section 5330
hearing to evaluate her risk of harm to Child based upon the fact that she was
charged with a DUI offense. Section 5330 requires the trial court to hold a
hearing “in an expeditious manner” when a party to a custody matter obtains
information that another party to the custody matter was charged with an
offense listed in Section 5329(a). 23 Pa.C.S. § 5330(a). Father did not raise
Section 5330 in his Motion for Hearing and therefore this statute was not
before the trial court. In any event, a trial court’s obligation to hold a hearing
under Section 5330 is triggered when the party that has not been charged
“move[s] for a temporary custody order or a modification of an existing
custody order.” Id. Because Father had not moved for a temporary custody
order or to modify the existing custody arrangement, the trial court was not
required to hold a Section 5330 hearing. See A.M., 2021 WL 929954, at *4
(stating that Section 5330 was inapplicable in the matter before this Court
because father was not seeking modification of a custody order on the grounds
of pending criminal charges against mother).
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12Though an unreported decision, we cite to A.M. for its persuasive value.
See Pa.R.A.P. 126(b) (non-precedential Superior Court decisions filed after
May 1, 2019 may be cited for their persuasive value).
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Therefore, as Father did not request modification of custody in
connection with his motion seeking a hearing under Sections 5329 and 5329.1
to assess the threat of harm he and Mother posed to Child, the trial court had
no statutory authority to conduct such a hearing. Furthermore, because the
trial court could conclude from a facial review of Father’s Motion for Hearing
that no further proceedings were required, the trial court did not violate
Father’s due process rights by ruling on the motion without a hearing and
without considering his objections to Mother’s motion to quash. Cf. S.T., 192
A.3d at 1161-65 (due process requires that incarcerated parent be able to
fully participate in hearing concerning that parent’s request for supervised
physical custody).13
In his second issue, Father argues that the trial court erred by applying
the doctrine of res judicata to the present matter based upon the court’s
earlier rulings against Father in custody modification petitions, which was the
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13 Father also contends that Judge Veon’s July 27, 2022 order that cancelled
the scheduled hearing and denied the Motion for Hearing violated the
coordinate jurisdiction rule by overruling Judge Kistler’s February 9, 2022
order. We disagree. “Under the coordinate jurisdiction rule . . ., a judge may
generally not alter the resolution of a legal question previously decided by
another judge of that court.” Xtreme Caged Combat v. Zarro, 247 A.3d
42, 46-47 (Pa. Super. 2021). In his February 9, 2022 order, Judge Kistler did
not grant Father’s Motion for Hearing or rule on any legal questions raised in
the filing. Instead, Judge Kistler’s order merely scheduled a hearing “for
consideration” of the Motion for Hearing—in effect a hearing to consider
whether to hold a hearing pursuant to Sections 5329 and 5329.1. Order,
2/9/22. As Judge Kistler did not expressly resolve any legal issues in his
February 9, 2022 order, Judge Veon did not violate the coordinate jurisdiction
rule by later denying Father’s motion and cancelling the previously scheduled
hearing. Xtreme, 247 A.3d at 46-47.
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primary argument raised by Mother in her motion to quash Father’s Motion for
Hearing. Father notes that this Court has held that the doctrine of res judicata
cannot act as a bar to a petition for modification of custody based upon the
principle that a custody order can be modified at any time. See, e.g., K.D.
v. E.D., 267 A.3d 1215, 1224-25 (Pa. Super. 2021).
Father is entitled to no relief on this issue. The trial court stated in its
Rule 1925(a) opinion that, contrary to Father’s argument in his Rule 1925(b)
statement, it did not deny his Motion for Hearing on the basis of res judicata.
Trial Court Opinion, 9/27/22, at 4. Moreover, as explained above, we have
concluded that the trial court had a proper legal basis, independent of the res
judicata doctrine, for denying Father’s request that the lower court conduct
Section 5329 assessments of Mother and Father and a separate assessment
as to Mother under Section 5329.1. See A.J.R.-H., 188 A.3d at 1175-76.
In Father’s third and fourth issues, he challenges the trial court’s August
5, 2022 denial of two other motions, his motion seeking Judge Veon’s recusal
and his motion seeking to vacate the appointment of counsel for Mother. We
conclude that we may not reach the merits of the trial court’s order denying
these motions as they were not decided until after the court ruled on the
Motion for Hearing. The order denying the Motion for Hearing was filed on
July 27, 2022, while the motion for recusal and the motion for appointment of
counsel were not filed until five days later on August 1, 2022. The trial court
entered its order denying these latter two motions on August 5, 2022. Father
filed his notice of appeal on August 25, 2022, and in the notice, he stated that
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he was appealing from only the trial court’s July 27, 2022 order. Father’s Rule
1925(b) statement, however, indicated that he was also challenging on appeal
the trial court’s August 5, 2022 ruling on the motion to recuse and motion to
vacate the appointment of counsel.
Generally, an appeal only may be taken from a final order, unless
otherwise permitted by rule or statute. K.M.G. v. H.M.W., 171 A.3d 839, 842
(Pa. Super. 2017). “A final order is one that disposes of all the parties and all
the claims, is expressly defined as a final order by statute, or is entered as a
final order pursuant to the trial court’s determination.” Id. (citation omitted);
see also Pa.R.A.P. 341(a)-(c). The trial court’s August 5, 2022 order is a
non-final order as it does not dispose of all the claims or parties, is not
designated as a final order, and no statute defines it as final. See In re
Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa. Super. 2012) (“[A]n order
on a motion for recusal is an interlocutory order for purposes of an appeal.”);
In re N.B., 817 A.2d 530, 533 (Pa. Super. 2003) (order denying mother’s
request for appointment of separate counsel than father in dependency
proceeding is non-final).14
When a party files a notice of appeal from a final order, the appeal draws
into question the propriety of the earlier non-final orders in that case. See
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14 We need not specifically address whether the August 5, 2022 order is an
interlocutory order appealable as of right or by permission, see Pa.R.A.P. 311,
312, or a collateral order, see Pa.R.A.P. 313, as Father did not file a notice of
appeal from the August 5, 2022 order.
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Pa.R.A.P. 341, Note; K.H. v. J.R., 826 A.2d 863, 870-71 (Pa. 2003) (appeal
following trial and judgment against one defendant encompassed earlier entry
of summary judgment in favor of other defendant); Betz v. Pneumo Abex
LLC, 44 A.3d 27, 54 (Pa. 2012) (appeal from grant of summary judgment
subsumes earlier ruling precluding the admission of expert opinion). However,
this rule applies to “prior non-final orders.” K.H., 826 A.2d at 870-71
(emphasis added) (noting that this rule is derived from federal “merger rule,”
which treats prior interlocutory orders as merging into final judgment); see
also Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa. Super. 2008)
(“[I]nterlocutory orders that are not subject to immediate appeal as of right
may be reviewed in a subsequent timely appeal of a final appealable order or
judgment.”) (citation omitted).
If the trial court’s rulings on the motion for recusal and the motion to
vacate the appointment of counsel had preceded the court’s denial of the
Motion for Hearing, we would be permitted to address them in this appeal as
prior non-final orders called into question by the issuance of a final order.
K.H., 826 A.2d at 870-71; Betz, 44 A.3d at 54. However, because Father’s
motions were not decided—or even filed—until after the entry of the order
under appeal, we are not permitted to do so. See Bridgeport, 51 A.3d at
229-31 (addressing “somewhat anomalous situation” where non-final order
denying recusal motion was not entered until after entry of judgment and
holding that order denying recusal could only be appealed after trial court
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ruled on other remand matters and finally resolved case).15 Therefore, Father
is entitled to no relief on his third and fourth appellate issues.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2023
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15 We recognize that, unlike in Bridgeport, there are no pending matters
before the trial court. However, in light of the fact that Child has not yet
reached the age of majority and custody orders are always subject to
modification, the possibility exists of future custody litigation that would allow
Father to raise the denial of his recusal motion and his motion to vacate
appointment of Mother’s counsel in a subsequent appeal.
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