Mann, V. v. Grate, R. ( 2023 )

J-S04018-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD C. GRATE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VENITA D. MANN :
:
Appellant : No. 2350 EDA 2022
Appeal from the Order Entered August 16, 2022
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): 0C1302259
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED APRIL 28, 2023
Appellant, Venita D. Mann (“Mother”), appeals pro se from the order
entered in the Philadelphia County Court of Common Pleas, which awarded
temporary sole legal custody of D.X.M. (“Child”) to Appellee, Richard C. Grate
(“Father”), and denied Mother’s petitions for contempt.1 We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 By per curiam order filed January 20, 2023, this Court noted that Mother’s
appeal from the order granting Father temporary sole legal custody was not
a final and appealable order. See Pa.R.A.P. 341(b)(1) (stating final order is
order that disposes of all claims and of all parties); G.B. v. M.M.B., 670 A.2d
714 (Pa.Super. 1996) (stating custody order is final and appealable after trial
court has concluded its hearings on matter and resultant order resolves
pending custody claims between parties). See also J.M. v. K.W., 164 A.3d
1260, 1263 (Pa.Super. 2017) (en banc) (explaining that order granting
temporary or interim custody is interlocutory). Thus, this Court directed that
the appeal proceed “solely on the denial of Mother’s petitions for contempt.”
(Order, filed 1/20/23) (emphasis omitted).
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A prior panel of this Court set forth some of the relevant facts and
procedural history of this case as follows:
A custody order was entered in January of 2014 …, when
Child was five years old and attending parochial school in
Philadelphia, where he lived with Mother and her older son
and daughter. Father resided in Pennsauken, New Jersey,
… with his wife, R.B.G. (Stepmother).
The [2014] order granted the parties shared legal custody,
Mother primary physical custody, and Father partial physical
custody on an alternating two-week basis. In week one,
Father was granted custody from Friday, when he picked
Child up after school, until Sunday at 6:00 p.m. In week
two, Father was granted custody from Wednesday, when he
picked Child up after school, until Saturday at 12:00 p.m.
[The parties filed] cross-petitions for modification of the
[2014] custody order … on December 23, 2014 [by Father],
and Mother on July 30, 2015, wherein they requested
primary physical custody. Mother also filed a petition for
contempt against Father. These petitions were not included
in the certified record. However, the record indicates that
Father’s request was based on allegations that he will
provide stability and structure for Child, particularly with
respect to his education. Mother’s request was based on
allegations that Child was sexually molested while at
Father’s home …. Mother also alleged that Child gets sick
while at Father’s house, including, but not limited to,
respiratory infections.
The trial court held hearings on November 30, 2016, May
17, 2017, October 31, 2017, January 30, 2018, September
21, 2018, January 24, 2019, and March 19, 2019. During
the hearing, the trial court consolidated the parties’ petitions
for modification, contempt [(which both parties had filed)],
and recusal [(which both parties had filed)]. Father was
represented by counsel during the proceedings. Mother
proceeded pro se during all but the first and final hearing
dates. There were numerous exchanges between the trial
court and Mother regarding Mother’s proffers of witnesses
and documents.
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The parties testified on their own behalf, and they presented
testimony from multiple witnesses. In addition, the trial
court admitted voluminous documentary evidence
introduced by the parties in this case.6 The trial court also
interviewed Child in camera on November 30, 2016, May
17, 2017, January 30, 2018, January 24, 2019, and March
19, 2019.
6 In addition to the testimony, the trial court
considered numerous documents that it admitted into
evidence during the hearing. Those documents
included reports from the Philadelphia Children’s
Alliance (PCA)[,] the Philadelphia County Department
of Human Services (DHS), Children’s Hospital of
Philadelphia (CHOP), St. Christopher’s Hospital for
Children, Division of Child Protection and Permanency
in the State of New Jersey (DCPP), and the Joseph J.
Peters Institute (JJPI).
* * *
By final order dated March 19, 2019, and entered on March
21, 2019, the trial court awarded the parties shared legal
custody, Father primary physical custody, and Mother
partial physical custody on alternating weekends from
Friday at 4:00 p.m. until Sunday at 7:00 p.m. The trial
court directed that the custody transfers continue to occur
at the 6th Police District building in Philadelphia, and if either
party is late or does not appear, it shall be recorded on the
police log forms, copies of which have been provided to the
parties. Further, the trial court dismissed Mother’s petitions
for contempt and denied her motion for recusal.
V.D.M. v. R.C.G., No. 1117 EDA 2019, 2020 WL 398591 (Pa.Super. filed Jan.
23, 2020) (unpublished memorandum), at *1-6 (internal citations and most
internal footnotes omitted). On January 23, 2020, this Court affirmed the
March 19, 2019 custody order. See id.The trial court summarized the subsequent procedural history as
follows:
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Since the Superior Court’s affirmance of the March 2019
order, the following orders, in relevant part, have been
entered:
Order, 11/19/20: Mother’s petition for contempt filed
3/9/20 is denied.
Order, 2/11/21: Mother’s petition for contempt filed 1/6/21
is denied.
Order 6/3/21: Matter relisted by request of Mother to seek
alternative counsel.
Order 10/18/21: Mother’s motion for recusal is denied;
order of 3/19/19 remains in effect and parties may modify
it as they agree; parties agree to attend co-parenting
counseling; parties agree that [Child] will attend
psychological counseling at the recommendation of his
treating pediatrician; parties are not to interfere with
counseling; parties shall participate in counseling only as
requested by counselor; report from counselor to be
provided at next listing regarding [Child’s] progress.
Order 3/7/22: Matter listed for protracted hearing on
11/7/22.
Order 6/24/22: Mother’s motion for recusal filed 2/25/22 is
denied; Mother’s petition for expedited relief filed 4/4/22 is
denied; listed for hearing on 8/12/22 is Mother’s petition for
expedited relief filed 5/12/22, Mother’s petition for
contempt filed 5/12/22, and Mother’s petition for contempt
filed 6/8/22.
Order 7/8/22: Mother’s petition for contempt filed 6/27/22,
is listed for hearing on 8/12/22.
The hearing on August 12, 2022, was continued to August
16, 2022, for completion of testimony. The four petitions
decided by the court on August 16, 2022 are as follows:
1. Mother’s petition for expedited relief filed May 12, 2022.
The petition consists of one hand-written paragraph and an
addendum typed in small face detailing Mother’s repeated
allegations, dating from 2013, of [Child’s] having been
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sexually abused at Father’s home and her repeated
averments that her evidence has been continually
disregarded by the courts.
2. Mother’s petition for contempt filed May 12, 2022. The
petition alleges that Father failed and refused to relinquish
custody of [Child] to Mother on multiple occasions: January
through May 7, 2022; February 7, 2020 through March 9,
2020. Attached was the same document that was the
addendum to the petition for expedited relief filed May 12,
2022.
3. Mother’s petition for contempt filed June 8, 2022. The
petition alleges that Father failed and refused to relinquish
custody of [Child] to Mother on April 30, May 13, and May
27.
4. Mother’s petition for contempt filed June 27, 2022. The
petition alleges that Father failed and refused to relinquish
custody of [Child] to Mother on June 10 and June 24, 2022,
and that Father refused to schedule summer vacation time.
In addition to denying all of Mother’s petitions, the August
16th order awarded Father temporary sole legal custody,
pursuant to 23 Pa.C.S. § 5323(b) and Pa.R.C.P. 1915.13.
The court acted on its own motion and granted Father
temporary sole legal custody as special relief in order to
enable [Child] to receive medical care and psychological
counseling as soon as possible. The August 16th order kept
in place the listing for the protracted custody hearing on
November 7, 2022, that had been scheduled on March 7,
2022. The November 7th protracted hearing will address
Mother’s petition to modify filed March 13, 2022, Mother’s
petition for contempt filed March 4, 2021, and Mother’s
amended petition to modify filed on April 8, 2021.
On September 13, 2022, Mother filed a notice of appeal;
contrary to Pa.R.A.P. 1925(a)(2)(i), she did not also file a
concise statement of errors complained of on appeal. On
September 15, 2022, the court ordered Mother to file a
concise statement of errors complained of on appeal. On
October 5, 2022, Mother filed a 36-page “concise”
statement of errors complained of on appeal. As this
statement was not concise within the meaning of Rule
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1925(b) and controlling case law, and would have resulted
in a waiver of all issues on appeal, the Superior Court
entered an order on October 12, 2022, directing Mother to
file an amended concise statement of errors complained of
on appeal by October 24, 2022. Mother filed a two-page
single-spaced amended statement with the clerk of family
court on October 21, 2022. …
(Trial Court Opinion, filed 11/1/22, at 1-4) (emphasis in original) (internal
footnote omitted).
Mother raises the following seven issues on appeal:
1. Whether the trial court violated [Mother’s] constitutional
right to due process of law?
2. Whether the trial court erred in failing to grant a petition
for recusal based on showing of prejudice, improper
demeanor, and bias towards [Mother]?
3. Whether the trial court showed personal bias?
4. Whether the trial court erred as a matter of law by
permitting [Father’s] witness to testify to hearsay of what a
professional therapist stated without being certified as an
expert while … omitting medical records from a
psychological evaluator that were vital to the case?
5. Whether the trial court erred in failing to consider all the
factors under 23 Pa.C.S. § 5328 as to what is in the child’s
best interests?
6. Whether the trial court erred in omitting several records
and video regarding occurrence[s] of sexual abuse in
[Father’s] home?
7. Whether the trial court erred in failing to address all of
[Mother’s] contempt petitions filed throughout the pendency
of the modification hearings?
(Mother’s Brief at xi).
Preliminarily, appellate briefs and reproduced records must materially
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conform to the requirements of the Pennsylvania Rules of Appellate Procedure.
Pa.R.A.P. 2101. “[I]f the defects are in the brief or reproduced record of the
appellant and are substantial, the appeal…may be quashed or dismissed.” Id.
See also Pa.R.A.P. 2111 (regarding required content of appellate brief).
Importantly, where an appellant fails to properly raise or develop her
issues on appeal, or where her brief is wholly inadequate to present specific
issues for review, a court will not consider the merits of the claims raised on
appeal. Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000) (holding appellant
waived claim where she failed to set forth adequate argument concerning her
claim on appeal; appellant’s argument lacked meaningful substance and
consisted of mere conclusory statements; appellant failed to cogently explain
or even tenuously assert why trial court abused its discretion or made error
of law). See also Lackner v. Glosser, 892 A.2d 21 (Pa.Super 2006)
(explaining appellant’s arguments must adhere to rules of appellate
procedure, and arguments which are not appropriately developed are waived
on appeal; arguments not appropriately developed include those where party
has failed to cite any authority in support of contention); Estate of Haiko v.
McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating rules of appellate
procedure make clear appellant must support each question raised by
discussion and analysis of pertinent authority; absent reasoned discussion of
law in appellate brief, this Court’s ability to provide appellate review is
hampered, necessitating waiver of issue on appeal).
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Additionally, “[a]lthough this Court is willing to liberally construe
materials filed by a pro se litigant, pro se status confers no special benefit
upon the appellant. To the contrary, any person choosing to represent
[herself] in a legal proceeding must, to a reasonable extent, assume that [her]
lack of expertise and legal training will be [her] undoing.” Wilkins v.
Marsico, 903 A.2d 1281, 1284-85 (Pa.Super. 2006), appeal denied, 591 Pa.
704, 918 A.2d 747 (2007).
Further, this Court has made clear:
Any issues not raised in a Rule 1925(b) statement will be
deemed waived. …Rule 1925 is a crucial component of the
appellate process because it allows the trial court to identify
and focus on those issues the parties plan to raise on appeal.
[A] Concise Statement which is too vague to allow the court
to identify the issues raised on appeal is the functional
equivalent to no Concise Statement at all. Even if the trial
court correctly guesses the issues Appellants raise on appeal
and writes an opinion pursuant to that supposition the
issues [are] still waived.
Our law makes it clear that Pa.R.A.P. 1925(b) is not satisfied
by simply filing any statement. Rather, the statement must
be “concise” and coherent as to permit the trial court to
understand the specific issues being raised on appeal.
Specifically, this Court has held that when appellants raise
an “outrageous” number of issues in their 1925(b)
statement, the appellants have deliberately circumvented
the meaning and purpose of Rule 1925(b) and have thereby
effectively precluded appellate review of the issues they now
seek to raise. We have further noted that such
“voluminous” statements do not identify the issues that
appellants actually intend to raise on appeal because the
briefing limitations contained in Pa.R.A.P. 2116(a) makes
the raising of so many issues impossible. Further, this type
of extravagant 1925(b) statement makes it all but
impossible for the trial court to provide a comprehensive
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analysis of the issues.
Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa.Super. 2007), aff’d, 602 Pa.
147, 977 A.2d 1170 (2009) (internal citations and quotation marks omitted).
Instantly, the trial court deemed all of Mother’s claims raised on appeal
waived, reasoning as follows:
On October 5, 2022, Mother filed a 36-page “concise”
statement of errors complained of on appeal. As this
statement was not concise within the meaning of controlling
case law, and would have resulted in a waiver of all issues
on appeal, the Superior court entered an order on October
12, 2022, directing Mother to file an amended concise
statement of errors complained of on appeal by October 24,
2022. Mother filed a two-page single-spaced amended
statement with the clerk of family court on October 21,
2022. This statement also fails to be sufficiently “concise”
and “coherent” such that the trial court judge is able to
identify the issues to be raised on appeal.
(Trial Court Opinion at 9).2
Because Mother’s amended Rule 1925 statement was insufficient to
permit the trial court to identify the issues Mother sought to raise on appeal,
Mother’s appellate issues are waived on this basis. See Tucker, supra.Additionally, many of the issues Mother purports to raise on appeal are not
included in her amended Rule 1925 statement, constituting waiver on that
ground as well. See id. Specifically, Mother’s amended Rule 1925 statement
does not mention bias, the court’s denial of her recusal motion, or the court’s
____________________________________________
2 Notwithstanding its waiver analysis, the trial court went on to address the
issues the court could decipher from Mother’s Rule 1925 statement. (See id.
at 13-21).
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failure to consider the relevant custody factors, as she purports to argue in
her second, third, and fifth issues on appeal.
Further, even if Mother had not waived her issues for failure to properly
preserve them in her Rule 1925 statement, they would still be waived for other
reasons or otherwise afford her no relief. Significantly, Mother’s argument
section in her appellate brief does not correspond to the seven issues she
purports to raise in her statement of questions presented. See Pa.R.A.P.
2119(a) (mandating that argument section be divided into as many parts as
there are questions to be argued and shall have at head of each part particular
point treated therein, followed by such discussion and citation of authorities
as are deemed pertinent). More importantly, Mother cites no law in support
of issues two, three, four, six, and seven on appeal, rendering those issues
waived on that ground. See id. See also Lackner, supra; Estate of Haiko,
supra; Butler, supra.The only issues for which Mother cites any legal authority pertain to the
first issue raised in her statement of questions presented (regarding the denial
of due process), and the fifth issue raised in her statement of questions
presented (regarding the failure to consider the relevant custody factors).
Regarding the latter issue, however, any challenge to the custody factors is
not appropriate here, where the custody order on appeal was temporary in
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nature and not a final, appealable order.3 See (Order, 1/20/23); J.M., supra;G.B., supra.Regarding the first issue complaining that the court denied Mother due
process, the court stated:
At paragraph 1 of her amended concise statement of errors
complained of on appeal, Mother avers that, the court
abused its discretion by ruling on evidence that denied her
a chance “to give her side of the story” and “prove she was
telling the truth,” and that the court did not allow her to
“present real evidence” and never allowed her to enter to
“relevant evidence.” The record demonstrates that this
issue is without merit as Mother was afforded adequate
opportunity to present all relevant, admissible evidence in
support of the four petitions pending before the court.
Mother’s admissible testimonial and documentary evidence
was carefully considered by the court. The court’s decision
was not influenced by the often-heated courtroom
exchanges between Mother and Father’s counsel. The court
did not act inappropriately in exercising its authority to
maintain courtroom decorum and to facilitate the orderly
presentation of each party’s case. Mother’s displeasure with
the substance of the court’s rulings does not render them
reversible error on appeal.
____________________________________________
3 The court explained:
The evidence presented at the hearings held on August 12,
2022 and August 16, 2022, established that Mother has
engaged in numerous actions which have caused a
disruption in [Child’s] receiving therapy and psychological
counseling. Providers have declined to provide services to
[Child] due to Mother’s intrusive actions that were disruptive
to the therapeutic process. In order to ensure that [Child]
receive counseling, the court determined that special relief
was necessary in the award of temporary sole legal custody
to Father.
(Trial Court Opinion at 10).
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(Trial Court Opinion at 20-21). Our review of the record confirms that the
court did not deprive Mother of due process during the relevant proceedings.
See In re Adoption of J.N.F., 887 A.2d 775, 781 (Pa.Super. 2005) (stating
due process requires opportunity to be heard and chance to defend oneself in
impartial tribunal having jurisdiction over matter). See also Pa.R.E. 611(a)
(stating court has discretion to exercise reasonable control over mode and
order of examining witnesses and presenting evidence). Here, the trial court
afforded Mother an opportunity to be heard and to present her case, while
also keeping order in the courtroom.4 Therefore, Mother’s issues on appeal
are waived, not properly before this Court for review, or otherwise afford her
no relief.5 Accordingly, we affirm.
Order affirmed.
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4 To the extent Mother complains the court “hid” a petition for contempt that
Mother filed on May 16, 2022, the trial court noted that “[t]he failure to list
this petition for a hearing along with the three contempt petitions that were
listed was inadvertent and Mother will have an opportunity to litigate its merits
at a future hearing.” (Trial Court Opinion at 4 n.2).
5 As the trial court properly observed: “Many of the exhibits, testimony, and
argumentation presented by Mother are subject to application of the doctrines
of law of the case and of collateral estoppel as they had already been
considered by the trial court prior to entry of the order of March 19, 2019 and
affirmed by the Superior Court at No. 1117 EDA 2019 on January 23, 2020.”
(Id. at 10).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2023
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