L.J.C. v. A.W. v. C.R. ( 2017 )

J-A01029-17
2017 Pa. Super. 105
L.J.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
A.W. :
:
v. :
:
C.R. :
:
Appellant :
:
:
D.M.W. :
:
v. :
:
A.I.W. :
:
v. :
:
C.R. :
:
Appellant :
:
:
C.R. :
:
Appellant :
:
v. :
:
A.I.W. :
:
:
C.R. :
:
Appellant :
:
v. :
:
A.I.W. : No. 1059 WDA 2016
J-A01029-17
Appeal from the Order June 21, 2016
In the Court of Common Pleas of Lawrence County
Civil Division at No(s): 10114 of 2013, C.A.,
10671 of 2012, C.A., 11060 of 2012, C.A.,
11491 of 2008, C.A.
BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.
OPINION BY OLSON, J.: FILED APRIL 17, 2017
Appellant, C.R. (“Grandfather”), appeals from the order entered June
21, 2016, in the Court of Common Pleas of Lawrence County, which denied
the relief requested in his motion for reconsideration, and directed that he
does not have standing to seek primary physical custody of his
grandchildren, D.W.1, a female born in September 2001, D.W.2, a male
born in October 2006, C.C., a male born in September 2009, and L.C., a
female born in March 2012 (collectively, “the Grandchildren”). After careful
review, we quash the appeal.
Grandfather is the maternal grandfather of the Grandchildren. The
Grandchildren’s mother, A.I.W. (“Mother”), exercises primary physical
custody of the Grandchildren, while Grandfather exercises partial physical
custody. The father of D.W.1 and D.W.2 is D.M.W., the father of L.C. is
L.J.C., and the father of C.C. is M.C.1 Pursuant to the parties’ most recent
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*
Retired Senior Judge assigned to the Superior Court.
1
We advise the trial court that M.C. is a necessary party to this custody
action, and that our Rules of Civil Procedure require the court to enter an
order joining M.C. See Pa.R.C.P. 1915.6(a)(1) (“If the court learns from the
(Footnote Continued Next Page)
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custody order, entered March 19, 2015, none of these fathers maintains an
award of physical custody. However, the order awards Mother and
Grandfather shared legal custody of the Grandchildren, “together with the
appropriate father.” Order, 3/19/2015, at ¶ 5.
On November 23, 2015, D.M.W., acting pro se, filed a petition for
modification of custody, in which he requested primary physical custody of
D.W.2. Shortly thereafter, on December 31, 2015, Grandfather also filed a
petition for modification of custody, in which he requested primary physical
custody of all four Grandchildren. The trial court held a pre-trial conference
on March 10, 2016. During the conference, Mother argued that Grandfather
lacked standing to seek primary physical custody of the Grandchildren. N.T.,
3/10/2016, at 6. Grandfather argued, inter alia, that he had standing to
seek primary physical custody pursuant to 23 Pa.C.S.A. § 5324(3)(iii)(B),
because the Grandchildren were at risk due to parental abuse or neglect.
N.T., 3/10/2016, at 22-29. In order to address Grandfather’s concerns, the
court, on March 10, 2016, entered an order directing the Grandchildren’s
guardian ad litem to conduct an investigation and issue a report within
ninety days. The order provided that the court would schedule a custody
hearing after receiving the guardian ad litem’s report.
_______________________
(Footnote Continued)
pleadings or any other source that a parent whose parental rights have not
been previously terminated . . . is not a party to the action, it shall order
that the person be joined as a party.”).
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Grandfather filed a motion for reconsideration on April 6, 2016, which
the trial court granted that same day. On May 6, 2016, Mother filed a
motion for reconsideration of the order granting Grandfather’s motion for
reconsideration. On June 21, 2016, the court entered the order complained
of on appeal, in which it denied the relief requested in Grandfather’s motion
for reconsideration, and concluded that Grandfather does not have standing
to seek primary physical custody of the Grandchildren. The order also
denied the relief requested in Mother’s motion for reconsideration.
Grandfather timely filed a notice of appeal on July 20, 2016. The court
ordered Grandfather to file a concise statement of errors complained of on
appeal, and Grandfather timely complied on August 16, 2016.2
Grandfather now raises the following issue for our review: “Whether
the trial court erred in finding that [] [G]randfather lacks standing to pursue
custody of Grandchildren[?]” Grandfather’s Brief at 8 (unnecessary
capitalization omitted).
Before reaching the merits of Grandfather’s issue, we initially consider
whether the June 21, 2016 order was appealable. “‘[S]ince we lack
jurisdiction over an unappealable order it is incumbent on us to determine,
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2
Grandfather 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. We have, however, accepted Grandfather’s concise statement
pursuant to In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding
that the 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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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).
It is well-settled that, “[a]n 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).
Here, our review of the record confirms that the June 21, 2016 order is
not final. At the time the trial court entered this order, the petition to
modify custody filed by D.M.W. remained pending and was unaddressed by
the court’s directive. In addition, although the court concluded that
Grandfather could not seek primary physical custody of the Grandchildren, it
did not indicate that it was denying or dismissing Grandfather’s petition to
modify. The court concluded that Grandfather retains the ability to seek
partial physical custody, and it is not clear if Grandfather intends to pursue
an expanded award of partial physical custody in lieu of primary physical
custody. Thus, we conclude that the court has not completed its hearings on
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the merits, and that the June 21, 2016 order was not intended to completely
resolve the custody claims pending between the parties.3
Additionally, we observe that the June 21, 2016 order is not
appealable pursuant to the collateral order doctrine. See Pa.R.A.P. 313(a)
(providing that an appeal may be taken as of right from a collateral order of
a lower court). “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). Here, the challenged order fails to meet the third prong of the
collateral order doctrine, as Grandfather’s claim will not be irreparably lost if
we postpone review of this matter until the entry of a final order. Since the
trial court did not dismiss Grandfather’s petition to modify and, furthermore,
concluded that he retained the right to seek partial physical custody,
Grandfather will be able to lodge an appeal once a final custody order is
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3
Among other claims, Grandfather argues that the trial court erred or
abused its discretion in failing to consider the mechanism set in place for the
guardian ad litem to investigate the existence of abuse or neglect on
Mother’s part. We reject this contention for two reasons. First, this claim is
largely irrelevant to the issue of whether Grandfather challenges a final
order in the context of this appeal. Instead, this claim can be raised after a
trial when a final order addressing all claims against all parties has been
entered. In addition, our review of the certified record shows that, given the
extensive history of litigation between the parties in this case, the trial court
appears to be quite familiar with the facts, the parties, and the claims raised
in this matter.
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entered. At that time, he may challenge the trial court’s determination that
he lacks standing to pursue primary physical custody, as well as any other
rulings he deems to be in error.
Accordingly, we hold that the June 21, 2016 order is not a final order,
nor is it appealable as a collateral order.4 As we are without jurisdiction to
address this order, Grandfather’s appeal must be quashed.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
____________________________________________
4
We observe also that the order is not an interlocutory order appealable as
of right, pursuant to Pa.R.A.P. 311, and that Grandfather 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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