K.J.W. v. L.W. ( 2015 )

J-S04002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.J.W., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L.W.,
Appellee No. 1429 MDA 2014
Appeal from the Order Entered July 28, 2014
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20723
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 08, 2015
K.J.W. (“Mother”) appeals from the July 28, 2014 custody order
awarding L.W. (“Father”) primary physical custody of their nearly eleven-
year-old son, J.W., and granting Mother overnight custody during three
weekends per month. Mother asserts that the trial court erred in denying
her motion to continue the custody hearing and by requiring her to
participate in the custody trial without counsel. We affirm.
Mother and Father married on December 9, 2002, and J.W. was born
of the marriage during August 2003. The parties’ relationship eventually
dissolved, and on October 3, 2013, Father filed for divorce. As Father’s
divorce complaint did not include a count for custody of his son, on
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*
Retired Senior Judge assigned to the Superior Court.
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November 12, 2013, Mother filed a custody complaint seeking shared legal
custody of J.W. and primary physical custody.
Since the itinerate nature of Mother’s legal representation during the
course of this litigation is pertinent to our disposition, a comprehensive
review of the procedural history is warranted. Mother’s first attorney Wiley
Parker, Esquire, who represented Mother in a support matter, accepted
service of Father’s divorce compliant. However, Bret Wiest, Esquire,
subsequently entered his appearance and filed Mother’s November 2013
custody complaint. Attorney Wiest represented Mother pro bono through a
referral from MidPenn Legal Services’ program. Two months later, Attorney
Wiest filed a motion to withdraw from representation citing Mother’s desire
to fire him and proceed unrepresented. See Motion to Withdraw Entry of
Appearance, 1/14/14 at 1. The trial court granted the motion the following
day.
Next, the trial court granted Father’s petition for a writ of ne exeat1
prohibiting Mother from removing J.W. from Lebanon County, Pennsylvania
pending the custody litigation. Father was concerned that, in the absence of
a custody order and in light of Mother’s statement that J.W. would only be in
the county for approximately one more month, Mother would attempt to
remove the child from the court’s jurisdiction. The court scheduled a
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1
Ne exeat is a writ ordering a person to whom it is addressed not to leave
the court’s jurisdiction. See Black’s Law Dictionary 1054 (7th ed. 1999).
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conciliation conference for January 27, 2014, where Mother appeared pro se.
Following the conciliation conference, the court entered an interim custody
order awarding Mother primary custody and granting Father five-hour
periods of physical custody on Monday and Tuesday evenings. The order
provided that once Father secured suitable housing, he could exercise
weekly overnight custody between Monday afternoon and Wednesday
morning.
Mother retained her next attorney, Colleen Gallo, Esquire, on April 1,
2014, who entered her appearance for the pretrial conference. Following
that meeting, the trial court declined to schedule a custody trial because the
parties appeared to be working toward an amicable resolution of the custody
dispute. The interim order continued to govern the custody arrangement.
Three weeks later, Mother filed a motion to withdraw her custody complaint.
The motion indicated that Mother desired to maintain the status quo outlined
in the interim custody order granting her primary physical custody.
Father countered that the interim order was insufficient to address all
of the facets of the custody dispute, and he argued that Mother failed to
comply with that interim order. Father complained, inter alia, that Mother
interfered with his weekday custody on at least eight occasions between
February 11, and April 1, 2014, and that J.W. was absent from school on six
of those dates. Additionally, Father filed a motion to schedule the custody
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trial. On May 13, 2014, the trial court granted Father’s motion and
scheduled the custody trial for July 28, 2014.
On May 30, 2014, Attorney Gallo filed a petition to withdraw from
representation. That petition averred that Mother “has requested that
Petitioner withdraw her appearance in the custody matter.” See Petition for
leave to withdraw appearance in custody, 5/30/14 at (unpaginated) 2. The
request was granted on June 2, 2014.2 The following day, Father filed a
petition for contempt against Mother for failing to comply with the interim
custody order. Specifically, Father alleged that Mother interfered with his
ability to exercise physical custody and would not permit him to contact the
mental health professionals treating their son. The scheduling order
included a notation that the trial court mailed notice of the contempt hearing
directly to Mother “Plaintiff (Pro Se).” Notice and Order to Appear, 6/6/14,
at 2. After a hearing, on June 24, 2014, the trial court found Mother in
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2
On July 1, 2014, Attorney Gallo reentered her appearance under the
consolidated docket number governing both the custody case and the the
divorce action, filed a counterclaim in divorce, and requested the
appointment of a divorce master to address economic aspects of the divorce
unrelated to custody. Since Attorney Gallo remained listed as the attorney
of record when the custody trial occurred, she technically represented
Mother at that juncture. However, it is clear from the record that Attorney
Gallo’s appearance was for a limited purpose unrelated to the child custody
litigation. Moreover, neither Mother nor the trial court treated Attorney
Gallo’s representation in the divorce matter as extending to the custody
litigation.
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contempt. That order was mailed directly to Mother, again, with the pro se
designation.
On July 22, 2014, nearly ten weeks after the trial court scheduled the
custody hearing, and approximately six-and-one-half-weeks after Attorney
Gallo withdrew her appearance in the custody case, Mother filed a pro se
motion for a continuance. Mother alleged that she was unrepresented, could
not afford to hire private counsel, and although she sought representation
through MidPenn Legal Services, the agency was unable to represent her or
refer her to pro bono counsel before the scheduled hearing. The trial court
denied the motion summarily the following day, and after revisiting Mother’s
request at the outset of the scheduled custody hearing, the court proffered
its explanation on the record in open court. Thereafter, the trial court heard
both parties’ evidence and entered the above referenced custody order
awarding Father primary physical custody of J.W. and granting Mother
partial physical custody on three weekends per month, alternating major
holidays, and one full week of summer vacation. This counseled, timely
appeal followed.3 Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing her
concise statement of errors complained of on appeal concomitant with her
notice of appeal. She raises two issues for our review:
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3
Attorney Parker, the lawyer who accepted service of Father’s divorce
complaint on Mother’s behalf, represents Mother on appeal.
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[1] Did the Lower Court err in denying Appellant[’s] . . . Motion
for Continuance filed on or about July 22, 2014 to permit her to
obtain counsel?
[2.] Did the Lower Court err requiring Appellant . . . to
participate in the Custody Trial without counsel?
Mother’s brief at 6.4
This Court reviews a trial court’s decision to grant or deny a
continuance for an abuse of discretion. Baysmore v. Brownstein, 771
A.2d 54, 57 (Pa.Super. 2001). “An abuse of discretion is more than just an
error in judgment and, on appeal, the trial court will not be found to have
abused its discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the results of partiality, prejudice, bias or
ill-will.” Id. There is no specific rule governing continuances in Pa.R.C.P.
1915.1-1915.25, the sections of our procedural rules that relate specific to
custody and visitation. Accordingly, we review Mother’s claim in light of the
general rule delineated in Pa.R.C.P. 216.
The applicable rule sets provides as follows:
Rule 216. Grounds for Continuance
(A) The following are grounds for a continuance:
(1) Agreement of all parties or their attorneys, if approved by
the Court;
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4
Mother does not challenge the merits of the trial court’s consideration of
J.W.’s best interests pursuant to 23 Pa.C.S. 5328(a) or the court’s iteration
of its considerations on the record at the close of the hearing. See N.T.
7/28/14, at 224-237.
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(2) Illness of counsel of record, a material witness, or a
party. If requested a certificate of a physician shall be
furnished, stating that such illness will probably be of
sufficient duration to prevent the ill person from participating
in the trial;
(3) Inability to subpoena or to take testimony by deposition,
commission, or letters rogatory, of any material witness,
shown by affidavit which shall state:
(a) The facts to which the witness would testify if present
or if deposed;
(b) The grounds for believing that the absent witness
would so testify;
(c) The efforts made to procure the attendance or
deposition of such absent witness; and
(d) The reasons for believing that the witness will attend
the trial at a subsequent date, or that the deposition of the
witness can and will be obtained;
(4) Such special ground as may be allowed in the discretion
of the court;
(5) The scheduling of counsel to appear at any proceeding
under the Pennsylvania Rules of Disciplinary Enforcement,
whether:
(a) as counsel for a respondent-attorney before a hearing
committee, special master, the Disciplinary Board or the
Supreme Court;
(b) as a special master or member of a hearing
committee; or
(c) as a member of the Disciplinary Board;
(6) The scheduling of counsel to appear at any proceeding
involving the discipline of a justice, judge or magisterial
district judge under Section 18 of Article V of the Constitution
of Pennsylvania, whether:
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(a) as counsel for a justice, judge, or magisterial district
judge before the special tribunal provided for in 42 Pa.C.S.
§ 727, the Court of Judicial Discipline, the Judicial Conduct
Board or any hearing committee or other arm of the
Judicial Conduct Board; or
(b) as a member of the Court of Judicial Discipline, the
Judicial Conduct Board or any hearing committee or other
arm of the Judicial Conduct Board.
Pa.R.C.P. 216.
Herein, there was no agreement between the parties, illness, discovery
issue, or applicable scheduling conflicts. Thus, the only potential ground for
Mother’s request for a continuance in this case was under Rule 216(A)(4)
“Such special ground as may be allowed in the discretion of the court[.]”
Instantly, our review of the record does not reveal that the court abused its
discretion in denying Mother’s motion.
At the beginning of the custody hearing, the trial court engaged
Mother in a lengthy discussion about her request for the continuance. First,
the trial court listed the attorneys who had represented Mother since she
filed the underlying custody complaint, culminating with Attorney Gallo’s
withdrawal on June 2, 2014. See N.T., 7/28/14, 6-7. Mother confirmed
that she was unable to afford Attorney Gallo’s representation in the custody
case. Id. at 7, 8. Next, the court highlighted that Mother had
approximately six-and-one-half weeks from the date of Attorney Gallo’s
withdrawal to find another lawyer to represent her at the custody hearing
but failed to do anything other than contact MidPenn Legal Services to help
her secure a continuance. However, that effort was ineffectual. Indeed,
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when the agency contacted Father’s attorney to request the scheduling
accommodation, it was still unaware that Mother had fired Attorney Wiest,
the pro bono attorney who it originally referred to Mother to assist her in
initiating this custody litigation. Id. at 8.
Thereafter, the trial court considered Father’s bases for opposing
Mother’s motion. The crux of Father’s position was that time was of the
essence in this highly contentious custody litigation. Father cited Mother’s
interference with his ability to exercise custodial rights, her lack of
communication, and her unilateral decision making regarding J.W.’s mental
health. Id. at 9-10. For instance, Mother previously refused to allow Father
to access J.W.’s health records or contact his doctors, and after the
contempt order directed her to release that information, Mother simply
changed physicians without informing Father. Id. at 10-11. Additionally,
Father was concerned that Mother would abduct J.W. despite the order
requiring the child to stay within the county. Id. at 10. Also, noting that
J.W.’s summer break was ending and that Mother had caused J.W. to miss
several days of school during the prior academic year, Father desired to
resolve the custody dispute and have his son settle into a routine before
school started. Id. at 10, 11.
Thereafter, the trial court issued the following findings:
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One, mother has had two previous counsel, both of whom have
withdrawn their appearance.
Two, mother had previously continued a contempt proceeding
under the basis of needing legal counsel.[5] And even though
the Court granted that matter, she still appeared without
counsel.
Three, the continuance asked in this matter . . . was filed almost
seven weeks after the date set for the custody [hearing.]
Four, based on all of the circumstances in this case and the
necessity to promptly address custody matters, the Court is
compelled to deny the custody request.
N.T., 7/28/14, at 11-12. Prior to issuing the underlying custody order, the
trial court revisited this issue a third time, reiterated the foregoing rationale
and concluded, “The matter has gone too long. I felt the interest of the child
trumped all of [Mother’s reasons] and denied [the request for a
continuance]. Id. at 224. There is no basis to disturb the trial court’s
determination.
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5
The certified record does not support the court’s finding that it previously
granted Mother a continuance so that she could obtain representation prior
to the hearing on Father’s petition for contempt. The record confirms that
Father filed his motion for contempt on June 3, 2014, and on June 6, the
trial court entered an order scheduling a hearing for June 24, 2014. The
certified record does include Mother’s putative request to continue that
proceeding, and neither the request nor an order granting a continuance is
noted on the list of docket entries. Moreover, the hearing occurred on the
date originally scheduled. Consequently, the record will not sustain this
aspect of the trial court’s findings. Hence, we do not consider this finding in
affirming the trial court’s decision to deny Mother’s request to continue the
custody hearing.
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Initially, we observe that Mother’s attempt to bolster her position by
referencing Corra v. Coll, 451 A.2d 480 (Pa.Super. 1982), is unpersuasive.
In Corra, this Court confronted whether an indigent defendant in a civil
paternity action filed pursuant to the now-repealed Pennsylvania Civil
Procedure Support Law had a right to representation under the Fourteenth
Amendment to the United States Constitution. In relevant part, after
engaging in the required constitutional analysis, we found that regardless of
whether the paternity action was state-initiated or simply prosecuted by an
indigent Mother with a state-provided attorney, due process required the
reciprocal appointment of counsel for an indigent defendant. Id. at 192-
193. We reasoned, “the legislature has conferred legal representation on a
complainant upon the request of the court, or a Commonwealth or local
public welfare official. We find no reason why an indigent defendant,
accused of parentage, should not also be provided with assistance of
experienced counsel.” Id. at 194.
Mother’s reliance upon our holding in Corra is inapt within the domain
of child custody litigation because the relevant aspects of the two actions
simply do not equate. While a civil paternity case under the Pennsylvania
Civil Procedure Support Law implicated at least some level of state action,
there is no state action in a custody matter. As we discuss, infra, child
custody litigation is purely private and the parties to the custody dispute are
responsible for their own counsel. Thus, in contrast to the civil paternity
case this Court addressed in Corra, where the statute provided for state-
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appointed counsel to represent indigent mothers, the legislature has never
conferred legal representation to either parent in custody disputes.
Accordingly, the Corra Court’s rationale is not instructive to the case at bar.
Additionally, the certified record validates that the trial court’s decision
was not manifestly unreasonable or the results of partiality, prejudice, bias
or ill-will. Prior to denying Mother’s motion for a continuance, the trial court
considered all of the pertinent factors in this case, including the case history,
Mother’s intermittent legal representation, the amount of time Mother had to
locate yet another substitute counsel before the scheduled hearing, the
effect of further delay upon Father, and most importantly, J.W.’s best
interest.
Stated simply, while Mother lacked representation on the date of the
hearing, she had been represented by several attorneys throughout this
litigation, whom she either deemed ill fitting or too expensive. Mother had
more than six weeks from the date that Attorney Gallo withdrew her
representation to either retain private counsel or locate substitute pro bono
counsel. She did neither. Instead, Mother continued unrepresented, flouted
the interim court order, and abused the authority that she wielded
concomitant to that interim award of primary physical custody. Mother
failed to cooperate with Father regarding basic issues, threatened to abscond
with J.W., and elected to keep J.W. home from school rather than permit
Father to exercise his court-ordered custodial periods. These actions sustain
Father’s perspective that maintaining the status quo while Mother searched
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for another lawyer would not only continue to prejudice him, but would also
penalize J.W. As the trial court cogently opined, “The child should not be
penalized because Mother has a history of becoming dissatisfied with her
attorneys and firing them. The child’s interest trumped all and required
proceeding with the custody trial.” Trial Court Opinion at 7. For all of the
foregoing reasons, Mother’s claim fails.
Next, we address Mother’s complaint that the trial court erred in
requiring her to proceed without the assistance of counsel. Mother does not
assert that she was entitled to counsel. Indeed, it well ensconced that there
is no absolute right to counsel in civil cases, including child custody cases.
See Karch v. Karch, 879 A.2d 1272 (Pa.Super. 2005) (“There is no right to
counsel in divorce, custody, or support proceedings.”); Rich v. Acrivos, 815
A.2d 1106, 1108 (Pa.Super. 2003) (affirming trial court’s decision to deny
husband court-appointed attorney in divorce proceedings); Wilt v.
LaLonde, 762 A.2d 1109 (Pa. Super. 2000) (Sixth Amendment right to
counsel did not extend to a custody and visitation cases). Rather than
assert a non-existent right to counsel, Mother delineates a litany of trial
court errors and argues that, but for the court’s demand that she litigate her
custody complaint pro se, the errors could have been highlighted and
corrected. Again, no relief is due.
First, the trial court did not require Mother to litigate her case pro se.
As we previously discussed, Mother had sufficient time to obtain legal
representation in this case. However, since Mother failed to secure counsel
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prior to the custody hearing or a continuance to maintain the status quo, the
trial court properly demanded that the custody hearing proceed regardless of
the status of Mother’s legal representation. Our jurisprudence is
unambiguous in that a pro se litigant takes upon the risks associate with the
absence of any legal training. See Rich, supra at 1108 (quoting Vann v.
Unemployment Compensation Board of Review, 494 A.2d 1081, 1086
(Pa. 1985)) (“any layperson choosing to represent himself in a legal
proceeding must, to some reasonable extent, assume the risk that his lack
of expertise and legal training will prove his undoing.”). Indeed, while
Mother concedes this principle, she asserts that the trial court overstepped
its bounds and made Mother’s presentation of her case more difficult. The
record belies Mother’s assertion. Contrary to Mother’s protestations, the
trial court made deliberate efforts to help Mother keep her argument on
course during the custody hearing, including providing her a copy of the §
5328(a) best interest factors that would be dispositive of the child custody
case. Accordingly, no relief is due.
For all of the forgoing reasons, we affirm the order awarding Father
primary physical custody of his eleven-year-old son.
Order affirmed.
Judge Allen joins this disposition.
Judge Strassburger concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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