HomeMy WebLinkAbout1999-6135 Civil
FRANCES L. BEERS,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
NO. 99-6135 CIVIL
CRAIG 1. HIMMEL,
Defendant
IN RE: OPINION PURSUANT TO RULE 1925
BEFORE HESS, 1.
On November 16, 2005, the undersigned entered an order denying the plaintiffs request
for modification of custody order. The plaintiff had sought modification of a long-standing joint
custody arrangement. Ms. Beers filed a notice of appeal from our order on December 15, 2005.
On December 20, 2005, we entered an order directing the plaintiff/appellant to file a concise
statement of matters complained of in her appeal. Though she was directed to file her statement
within fourteen days of our December 20th order, her statement still has not been filed. In the
meantime, we have been advised that the record of this case, together with our opinion, is due in
the Superior Court in ten days.
In Com. v. Lord, 719 A.2d 306 (Pa. 1998), the Supreme Court of Pennsylvania made
clear that in order to preserve claims for appellate review, the appellant must comply with a trial
court order to file a statement of matters complained of on appeal. The court went on to hold
that any issues not raised in such a statement would be deemed waived. The principle
announced in Lord has been followed in numerous subsequent cases. Cj McKeeman v.
Corestates Bank, 751 A.2d 655 (Pa.Super. 2000); Schaefer v. Aames Capital Corp., 805 A.2d
534 (Pa.Super. 2002); Com. v. Butler, 812 A.2d 631 (Pa. 2002); Bryant v. Glazier Supermarkets,
Inc., 823 A.2d 154 (Pa.Super. 2003). Importantly, the holding in Com. v. Lord has been
expressly applied to family law cases; see Riley v. Foley, 783 A.2d 807 (Pa.Super. 2001) cited in
In the Interest of CM, 882 A.2d 507, 515 (Pa. Super. 2005).
This is a case in which the parties have been sharing custody of their children for many
years. The father, in fact, has made a special effort to maintain a residence in such proximity to
the mother's as to facilitate joint custody. The mother has not reciprocated and instead, most
recently, moved to Perry County. This has made shared custody cumbersome, though by no
means impossible. It is true that the children, no doubt, prefer the environment in Perry County.
Weare concerned, however, that in modifying custody so as to grant primary physical custody to
the mother we will sanction an arrangement which will detrimentally effect the relationship of
the children with the father. This is a difficult case and one in which it would be particularly
important to understand the mother's issues on appeal.
January
,2006
Kevin A. Hess, 1.
Gary A. Miculita, Jr., Esquire
F or the Plaintiff
Jan Barnett, Esquire
F or the Defendant
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