HomeMy WebLinkAbout2011-4372 Civil Term
R.A.G.,
Plaintiff/Appellee
IN THE COURT OF COMMON PLEAS
v.
OF THE NINTH JUDICIAL DISTRICT
A.L.R.,
NO. 2011-4372 CIVIL TERM
Defendant/Appellant
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925(a)(2)
Placey, C.P.J., May 11, 2012.
In this custody case, Defendant-Mother, A.L.R., has filed a ast Track
Appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2), from this
which
granted primary physical custody of nearly three year old daughter M.E.R., to
Tuesday at 6:00 p.m. and ending on Thursday at 6:00 p.m. The basis of the fourteen-page
Custody Order was the determination that this custody schedule was in the best interests
of the minor child, pursuant to Section 5328 of the Domestic Relations Act. The Custody
Order, several pages of which set forth in length the reasoning in establishing the custody
schedule, is incorporated herein by reference, and attached to this Opinion Pursuant to
1
Rule of Appellate Procedure 1925(a)(2) for convenience.
appeal as follows:
a.
will be very difficult for the child.
1
not supported with citations to the record.
b. The Trial Court erred in its conclusion because the Father did not provide enough
evidence or testimony at trial to support the determination that he should at this time
be granted overnight physical custody.
c. The Trial Court erred in finding its ultimate disposition of the case is in the best
interests of the child when the Mother and Maternal family has and continues to
perform all duties necessary to foster the emotional and physical growth of the child
while the Father has done very little by way of parental duty for the child.
d. The Trial Court erred in finding that its ultimate disposition of the case is in the best
interest of the child when the child, even at such a young age, has shown an extreme
e. The Trial Court erred as a matter of law in denying Defendant [A.L.R.]
Dismiss the Custody Complaint pursuant to Rule 1915.4, which requires a trial to be
scheduled within 180 days of filing a Complaint if neither party has requested an
extension of time and therefore, a trial should not have even occurred in the instant
case.
f errors complained of on appeal raise two
challenges: 1) that the court erred in its determination of the best interests of the child
based upon the weight of the evidence; and 2) that the court erred in its denial of
o Rule 1915.4, which she had filed at 4:26 p.m. of
the day before the morning of which the trial was scheduled to begin. Father, R.A.G.,
who originally requested primary physical custody of the child, is satisfied with the
Custody Order. The court will add
B
ACKGROUND
The parties are the parents of a minor child, M.E.R., who was born September 4,
2009. M.E.R. was born out of wedlock. At the February 29, 2012 trial (hereinafter
, Father, R.A.G., testified on his own behalf. Father also presented testimony of
2
(a) his wife, A.G., with whom he resides together with their two minor children; and (b)
J.G., Paternal Grandmother . Father also
entered photographs of pictures of M.E.R.sippy
dirty condition.
At Trial, Mother, A.L.R., testified on her own behalf. Mother also introduced the
testimony of (a) D.R., the Maternal Grandmother to M.E.R.
Grandmother), with whom she, M.E.R.reside; (b) M.B., with
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whom Mother has a teenage child; and (c) V.W., a long-time friend of Mother. Mother
also admitted eleven photographs of her residence, marked as Exhibit 1.
Preliminarily, the court notes that, despite her setting forth several experts as
anticipated witnesses in her Pre-Trial Memorandum, Mother did not present testimony of
any treating physician, specialist, or counselor of M.E.R., nor testimony of a drug and
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alcohol counselor from Roxbury Treatment Center. The court found the absence of this
4
testimony perplexing, as Mother emphasized that -holding spells and
5
alleged decline in M.E.R.health were due in part to periods of custody with Father.
2
Neither M.B. nor V.W. had observed interactions between Father and M.E.R.
3
Similarly, Father listed in his Pre-Trial Memorandum two uncalled witnesses: State Parole Agent Eric Cleland,
identified as A.L.R.s Parole Officer; and Dr. Jeffrey D. Kearns, D.D.S., identified as M.E.R.Dentist. The parties
explained, at the start of the Trial, that the expert witness whom both had listed in her Pre-Trial Memoranda were
unavailable. The court was, therefore, without the evidence that those valuable witnesses would have provided.
4
M.E.R. would stop breathing and the
pigmentation in her skin would fade. At the Trial, both parents indicated that each possess a CPR certification,
which, according to Father, was recommended (but not required) by a physician.
5
ness required some substantiation to be viewed by this court as meritorious.
3
certain
testimony, unconvincing to the court.
BIC
EST NTERESTS OF THE HILD
Pursuant to 23 Pa.C.S. § 5328, the court shall determine the best interest of the
child by considering all relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1)
Which party is more likely to encourage and permit frequent and continuing contact
between the child and another party.
(2) The present and past abuse committed by a party or member of the party's household,
whether there is a continued risk of harm to the child or an abused party and which
party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and
community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity and
judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of
domestic violence where reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing
relationship with the child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental,
educational and special needs of the child.
(11) The proximity of the residences of the parties.
ed causal connection between Father and M.E.R.
n testimony, not as credible
as evidence refuting the same.
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(12) Each party's availability to care for the child or ability to make appropriate child-care
arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties
to cooperate with one another. A party's effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to cooperate with that
party.
(14) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328.
With the aforementioned principles in mind, the court set forth the considerations
in its Custody Order. The following discussion supplements certain considerations that
were set forth in that Order, emphasizing those factors which the court found most
persuasive.
In terms of factual backdrop established at Trial, neither Mother nor Father has
been primary caregiver; rather, Maternal Grandmother is the individual in
M.E.R.M.E.R. with consistency in her development.
At the time of Trial, Mother, who is a recovering addict of prescription drugs herself, had
spent almost half of M.E.R.life in jail, and is without a drive
foreseeable future due in part to, inter alia, several alcohol/drug-related convictions. In
addition to being dependent upon Maternal Grandmother for transportation, Mother is
dependent upon her extended family for housing. She shares the home of her own 81-
year-old maternal grandmother with (a) Maternal Grandmother; (b) her 13-year-old son
from a prior relationship, C.R-B.; and (c) M.E.R. Maternal Grandmother is available to
care for M.E.R. due to her sabbatical from work as a medical technician to care for her
5
own mother; however, Maternal Grandmother indicated that this arrangement is not
permanent, and Mother will eventually have to become self-sufficient.
As of the time of Trial, both Mother and Father were employed. Mother is the head
server at a local diner, and works approximately 40 hours per week, with a schedule that
she described as somewhat regular, but flexible to the extent that she can switch shifts
with another employee to accommodate appointments for her children. Mother testified
that, when she is working or otherwise unavailable, Maternal Grandmother typically
cares for M.E.R.
Earlier in M.E.R. life, Father had not significantly been an active participant, but
has shown an increased desire to be a stable parent for M.E.R. Father lives with his wife
and two other children, and his residence is in close proximity to their extended family
members. Father works a unique schedule at AMTRAK as a car inspector, where
Wednesday and Thursday are effectively his weekend. Fath wife is employed by a
local hair salon, and testified that her work schedule permits her to be involved with
caring for M.E.R. testified that she has a very good relationship with
M.E.R., and that M.E.R. eats frequently throughout the day. Both Father and his wife,
each of whom the court found entirely credible, testified that, since M.E.R. had started
M.E.R. had displayed virtually no indication
that she has an extreme aversion to spending ove, nor any
breath holding spells.
6
At the hearing, there was testimony regarding both provisions for the needs
of M.E.R., and evidence establishing that both parties
household, were involved with M.E.R.medical needs and dental appointments. While
has had the primary physical custody of M.E.R., the court recognizes
that Father could meet the needs of the young child by performing the parental duties, if
given the opportunity.
In terms of the enumerated factors, the court focused on which party is more likely
to encourage and permit frequent and continuing contact between the child and the other
party. In this regard, the coudominate
promoter of frequent and continuing contact between the child and the other party.
Mother appeared to be more aggressive and demanding as compared to Father. It was
obvious to the court that Mother wanted to directly control the development of the father-
daughter relationship by dictating with whom and how Father could spend his custodial
timeM.E.R.stepmother and half-siblings into M.E.R.
life was genuinetody should be
both supervised and between only father and M.E.R. was unpersuasive, and a credible or
valid basis for such a position was indiscernible. While Mother contended that Father
prevented M.E.R. from speaking on the phone with Mother during his periods of
overnight custody, both Father and his wife testified that, although they encouraged
M.E.R. to speak on the phone, it was M.E.R. who shies away from the goodnight
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telephone calls. In terms of communication between the parents themselves, it was
other, Father preferred to use indirect communication technology, such as text messaging
or email, while Mother preferred direct telephone contact. Based on the Trial testimony,
it was evident that Mother would not encourage, and would likely continue to inhibit,
frequent and continuing contact between M.E.R. and Father. The consideration of this
factor tended to weigh in favor of Father.
The next factor the court weighed heavily was the need for stability and continuity
Mother, as the primary physical custody of M.E.R. had
However, as previously indicated in this Opinion and in the Custody Order, the court
found Maternal Grandmother to be M.E.R.primary caregiver as compared to either
environment as compared to M
extended family.
Considering the availability of extended family,
appeared to be willing, enthusiastic, and able to provide support for M.E.R. All members
of the par at Trial appeared genuinely interested in being a
6
Father also testified that, when he calls to speak with M.E.R. on the phone, she is similarly short with him. M.E.R.,
of course, is only nearly three-years old, and the court found convincing that M.E.R.aversion, if any, to speaking
on the phone was similar for both parents, concluding that it was unlikely that Father prohibits M.E.R. from
speaking with Mother.
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significant part of M.E.R.live within a close
proximity to the parties themselves. As discussed in detail, both above in this
supplemental opinion and the Custody Order, M.E.R.
the primary caregiver. While this factor, as of the date of the Trial, arguably weighed in
favor of Mother, the court recognized that the Maternal Grandmother testified that the
extent of current availability would not be permanent. Additionally, Paternal
Grandmother expressed her availability and desire to play a more significant role in
M.E.R.
Particularly relevant to this case is the availability of the parties for the purpose of
determining child custody. The Pennsylvania Superis
work schedule may not deprive that parent of custody if suitable arrangements are made
K.L.H. v. G.D.H. 464 A.2d 1368 (Pa. Super.
1983). Expanding upon this principle, the Superior Court has held that,
be
considered when determining a custody schedule that will serve the best interest of the
7
child. See Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998). The Wiseman Court
explained that:
The fact that [father] has enrolled the child in a day care program and enlisted the aide of
his girlfriend in providing physical care for the child, while not necessarily evidence of
an unstable environment, creates a persuasive argument that shared custody, which does
not in fact result in the full involvement of the [parent] during the time [he or she] has
7
Although Wiseman was decided prior to the enactment of the current custody statute, the Wiseman
reasoning is applicable and persuasive to the matter sub judice.
9
custody, defeats the underlying reason for shared custody and does indeed . . . create
more involvement with non-parental care takers than is necessary or desirable.
Wiseman, 718 A.2d at 847 (emphasis supplied).
Similar to the father in Wiseman, who relied heavily upon his girlfriend to care for
8
the child in his absence, Mother heavily relies upon Maternal Grandmother to care for
M.E.R. in the present case. Acknowledging that a change in the availability of the third
party or in the relationship between that third party and the parent could change
Wiseman court concluded that awarding primary
-parent was preferable. The Superior Court reasoned that
ty preferable
because it ensured that the child was less in the care of a third party, especially where a
This court found the Wiseman applicable to the matter sub
judice. Albeit the commitment of a girlfriend (as was in Wiseman) and a
grandmother may be significantly different in terms of
certainty of commitment, in the present matter, a party-parent (Father) is
available to care for M.E.R., especially during a time where M.E.R. would most likely
otherwise be in the care of a third party (Maternal Grandmother), or at the very least,
reliant upon that third party by virtue of being in -.
necessary reliance upon third parties, was
a significant factor in determining the custody schedule, and clearly weighed heavily in
8
Id. at 851.
10
favor of Father. Significantly, t
such as Paternal Grandmother or , who will be M.E.R.primary caregiver.
The Custody Order granted Father an additional weekday to spend with his
daughter
to be exercised during what is effectively weekends. Regarding the overnight
provisions, Father presented corroborated testimony that M.E.R. acts as a typical two-
year old during his periods of overnight custody, during which he encourages M.E.R. to
speak with Mother on the telephone, although M.E.R. occasionally shies away from the
phone to speak with Mother. Mother presented virtually no credible evidence to support
her contention that M.E.R. at F
9
It is abundantly clear to the court that both parents are willing to effectively parent
the child, although both parents exhibit a difference in parenting style. Each witness
testified that M.E.R. is a delightful child, and the court recognizes that M.E.R. appears to
be Maternal Grandmother testified that she and M.E.R.
enjoy active social play, but that M.E.R. has a more-limited interaction with her siblings.
Mother takes M.E.R. to a structured exercise program with other children to provide
social interaction. It is evident to the court that M.E.R. desires attention, and acts out
9
Cf. Concise Statement of Matters Complained of on Appeal, ¶ (d), filed April 12, 2012.
11
when she does not get as much attention as she wants. It must be acknowledged that
M.E.R. is only two-years old, and like a typical two-year old, will exhibit temper
tantrums and will act immaturely. Without credible testimony offered to the contrary, the
court must expect that M.E.R.
as her verbal skills improve. While it is extremely difficult to reason with a child
throwing a temper tantrum, it is not a proper
Custody Order to provide a framework in which M.E.R. can mature with the guidance of
both parents.
The court recognizes the benefits of continuity and stability in custody
arrangements, and to the possibility of harm arising from disruption of long-standing
patterns of care. Johns v. Cioci, 865 A.2d 931 (Pa. Super. 2004); See also Jackson v.
Beck, 858 A.2d 1250 (Pa. Super. 2004); Pilon v. Pilon, 492 A.2d 59 (Pa. 1985).
Unfortunately, in respect to continuity and stability, neither parent has been M.E.R.
primary caregiver. Fortunately, both parents wish to have a more significant role in
M.E.R. The court is neither
able to agree with Mother that granting Father an additional day of custody and
continuing his periods of overnight custody
10
nor does the court believe that the Custody Order will disrupt M.E.R.
10
Cf. Concise Statement of Matters Complained of on Appeal, ¶ (a), filed April 12, 2012.
12
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lifestyle . Rather, the court is confident that M.E.R.
will adapt to the new schedule, and the new schedule will permit M.E.R. to mature with
the involvement from both of her loving parents.
Accordingly, for the foregoing reasons, the court found that its March 13, 2012
Custody Order was (1) in accord with the weight of the evidence; (2) in the best interest
of M.E.R.; and therefore (3) properly entered.
MMDPRCP1915.4
OTHERS OTION TO ISMISS URSUANT TO ULE OF IVIL ROCEDURE
12
Motion to Dismiss pursuant to Rule of Civil Procedure 1915.4. The record indicates
that at 4:26 p.m. on February 28, 2012, Defendant filed a Motion seeking to dismiss the
entirety of custody matter, which the court had scheduled in its January 19, 2012 Order of
13
Court. The last-minute nature of the Motion was, in the opinion of the court, a tactical
14
diversion. The Motion to Dismiss contained a dozen paragraphs and provided, in
pertinent part, as follows:
1. On May 16, 2011, Plaintiff filed a Complaint for Custody.
11
Cf. Concise Statement of Matters Complained of on Appeal, ¶ (d), filed April 12, 2012.
12
Order of Court, In re: Motion to Dismiss Pursuant to Rule 1915.4, dated March 13, 2012. As the court did not
receive the Motion from the Prothonotary until mere moments before the commencement of Trial, the court was not
inclined to send the parties home before having the opportunity to thoroughly review the Motion, applicable rules,
and case law. Accordingly, the court stayed its decision until after the Custody Trial. See Order of Court, In re:
Motion to Dismiss Pursuant to Rule 1915.4, dated March 13, 2012.
13
Order of Court, In re: Custody Conciliation Report, dated January 19, 2012.
14
M.E.R.life.
Such a Motion, the granting of which would nullify the progress made through the conciliation process to include an
increased presence of both Mother and Father in M.E.R.
M.E.R. is older before Father has periods of overnight custody.
13
* * *
3. There have been five (5) conciliation conferences in this matter.
4. At the conciliations defendant objected to the entry of any interim Order.
* * *
6. A Conciliation was initially held in compliance with Rule 1915.4(a).
* * *
8.
schedule trials and neither party files a praecipe, motion or request for trial within
court shall dismiss the matter
180 days of filing of the pleading, the unless the
1915.4(b) emphasis added.
* * *
12. o be dismissed, where trial was not
scheduled within 180 days of the filing of the petition as mandated by rule of civil
procedure. Dietrich v. Dietrich, 923 A.2d 461 (Pa Super 2007) and Harrell v.
15
Pecynski, 11 A.3d 1000 (Pa Super 2011).
Per Supreme Court of Pennsylvania rule, custody cases are to be disposed of promptly.
Pa. R.C.P. 1915.4 (Prompt Disposition of Custody Cases); see also Harrell v. Pecynski,
11 A.3d 1000 (Pa. Super. 2011); Dietrich v. Dietrich, 923 A.2d 461 (Pa. Super. 2007).
16
Rule 1915.4, entitled provides, in relevant part,
as follows:
Listing Trials Before the Court
(b) . Depending upon the procedure in the judicial
district, within 180 days of the filing of the complaint either the court shall
automatically enter an order scheduling a trial before a judge or a party shall file
a praecipe, motion or request for trial, except as otherwise provided in this
subdivision. If it is not the practice of the court to automatically schedule trials
and neither party files a praecipe, motion or request for trial within 180 days of
15
Motion to Dismiss, Pursuant to Rule 1915.4, filed February 28, 2012 (emphasis in original).
16
ptions and Headings. Use of
Notes and Explanatory Comments).
14
filing of the pleading, the court shall dismiss the matter unless the moving party
has been granted an extension for good cause shown, which extension shall not
exceed 60 days beyond the 180 day limit. A further reasonable extension may be
granted by the court upon agreement of the parties or when the court finds, on the
record, compelling circumstances for a further reasonable extension.
Pa. R.C.P. 1915.4(b).
Rule 1915.4 is explicitly subject to the local rules of the judicial district. See Pa.
R.C.P. . Of course,
the rule cannot be viewed and interpreted in a vacuum, and instead must be construed in
pari materia with the other rules relating to the same class of proceedings. Pa. R.C.P. 131
.
Pursuant to Local Rule, Cumberland County does not provide for the automatic
scheduling of custody trials. See C.C.R.C.P. 1915.3-3. Cumberland County Rule of Civil
Procedure 1915.3-3 provides that all custody matters be referred by the Court
Administrator to a conciliation conference. C.C.R.C.P. 1915.3-3. If the parties fail to
reach an agreement at the conclusion of the conciliation process, the case is considered
-8(b). The
Pennsylvania Rules of Civil Procedure contemplate this type of procedure and provides
as follows:
Non-Record Proceedings
(a) . In those jurisdictions which utilize an initial non-record
proceeding such as a conciliation conference or office conference, if no agreement is
reached at the conclusion of the proceeding, the conference officer or conciliator
shall promptly notify the court that the matter should be listed for trial.
15
Trial
(b) . The trial before the court shall be de novo. The court shall hear the case and
render a decision within the time periods set forth in Rule 1915.4.
Pa. R.C.P. 1915.4-3.
Rule 1915.4(b) unambiguously refers to the judicial , and Rule
1915.4-3 both (1) acknowledges the procedure employed by Cumberland County, and (2)
refers to the time periods in which the court must hear the case and render its decision,
both of which are codified in Rule 1915.4. See Pa. R.C.P. 1915.4-3, 1915.4. Therefore, it
is clear that the rules must not be construed in a vacuum, but instead in conjunction with
one another. See Pa. R.C.P. 131.
Rule 1915.4-3 refers to certain, but not all, of the time limits set forth in Rule
1915.4. Specifically, Rule 1915.4-
hear the case and render a decision Pa.
R.C.P. 1915.4-3(b) (emphasis supplied). Importantly, the Rule does not refer to the
scheduling timeframe set forth in 1915.4, but instead lists the time constraints applicable
to a hearing following non-record proceedings. Clearly, Rule 1915.4-3(b) requires that
the court must hear the case within 90 days of the scheduling order (pursuant to Rule
1915.4(c)), and that the court must render its decision within 15 days from the conclusion
of the hearing (pursuant to Rule 1915.4(d)
Disposition of Custody Cases. However, Rule 1915.4-3(b) is void of any requirement
that the conciliation process has a sunset duration of 180-days, regardless of the
likelihood or immanency of a more amicable resolution. It is akin to the principle that,
16
although
Kmonk-Sullivan v. State Farm Mut. Auto. Ins.
Co., 567 Pa. 514, 525, 788 A.2d 955, 962 (2001) (citation omitted). As Rule 1915.4-3(b)
specific
the court cannot assume that Rule 1915.4-3 requires the conciliator to
promptly notify the court that the matter must be scheduled either after the conclusion of
the conciliation (as explicitly required by Rule 1915.4-
3); or prior to expiration of the 180-day deadline set forth in Rule 1915.4 (a direction that
is clearly absent from Rule 1915.4-3), whichever should occur first. For the foregoing
reasons, this court cannot agree that Rules 1915.4-3 and 1915.4 required the court to
dismiss the matter where the conciliation process itself lasted
beyond 180-days.
In the present case, the Complaint in Custody was filed on May 16, 2011. As
Hubert X. Gilroy, Esquire, a long-time Custody Conciliator and well-respected
Cumberland County attorney. The record clearly indi
17
is
indisputably inaccurate. Following a Conciliation Conference held on August 18, 2011, at
which Father and Mother were present and represented by their respective counsel,
17
Motion to Dismiss, Pursuant to Rule 1915.4, ¶4, filed February 28, 2012.
17
18
Conciliator Gilroy submitted a Conciliation Conference Summary Report. The Report,
dated August 19, 2011, contained the following paragraph:
3. The parties agreed to the entry of an Order as attached based upon the
recommendation of the Custody Conciliator.
A recommended Order.
That Order was signed without modification by the Honorable J. Wesley Oler, Jr., and
was dated August 22, 2011. The August 22, 2011 Order contained the following
paragraph:
6. Legal counsel for the parties shall conduct a telephone conference with the
Custody Conciliator on Thursday, September 29, 2011, at 8:00 a.m. At that
conference and in the event there have not been any significant issues, it is
anticipated that a more permanent Order will be worked out that would allow
Father additional periods of temporary custody. In the event there are any
may contact the Custody Conciliator to schedule a more accelerated telephone
conference after which the Conciliator may, as appropriate, recommend a
19
modified Order to this Court.
Clearly, at the conclusion of the August 18, 2011 Conciliation, an amicable resolution to
the custody dispute appeared likely to both the parties and Conciliator Gilroy, and the
Conciliator suggested, and the parties agreed, to the scheduling of additional
conciliations. An additional Custody Conciliation Conference was held on October 5,
2011, at which the parties appeared, once again, with their respective counsel. The
Conciliation Conference Summary Report, dated October 6, 2011, recommended an
18
Conciliation Conference Summary Report, dated August 19, 2011.
19
Court Order, 6, dated August 22, 2011 (Oler, J.) (emphasis supplied).
18
Order of Court, which was signed by Judge Oler on October 10, 2011 and contained the
following paragraph:
1.The parties shall meet again with the Custody Conciliator for a third Custody
Conciliation Conference on Wednesday, November 23, 2011, at 8:30 a.m. At that
time and assuming the parties cannot reach an agreement on the entry of a
permanent Order, the Conciliator shall refer the matter to the Court for the
20
scheduling of a hearing.
In addition to scheduling a third Conciliation, the October 10, 2011 Order clearly placed
the obligation of referring the matter to the court for trial upon the Conciliator.
Mother by ordering Father to submit to a drug/alcohol evaluation, which was to be
21
completed prior to the November 23, 2011 Conciliation Conference.
On December 21, 2011, Conciliator Gilroy conducted another conciliation
conference with the parties and their respective counsel. At the conclusion of this final
conciliation conference and it appearing to Conciliator Gilroy
vigorously a position
Conciliator is not hearing any objective information that suggests overnights should not
22
On January
18, 2012, the undersigned entered an Order of Court, which established a temporary
20
Court Order, ¶1, dated October 10, 2011 (Oler, J.) (emphasis supplied).
21
Court Order, ¶2(C), dated October 10, 2011 (Oler, J.).
22
Conciliation Conference Summary Report, dated December 28, 2011; Order of Court, ¶1, dated January 19, 2011
(Placey, J.). Additionally, the December 28, 2011 request for trial was submitted within what would be the 60-day
extension period provided by Rule 1915.4(b). Cf. Dietrich v. Dietrich, 923 A.2d 461 (Pa. Super. 2007); Harrell v.
Pecynski, 11 A.3d 1000 (Pa. Super. 2011).
19
custody order and scheduled a custody trial for February 29, 2012, a commencement date
within the 90-day timeframe mandated by Rule 1915.4(c).
Based on the foregoing as evidenced by a review of the record, it was clear to the
court that the parties had been extremely involved in trying to resolve their custody
dispute. Multiple conciliations were conducted before Conciliator Gilroy, at least one of
which resulted in an agreement. It was only until the possibility for a settled case
defined by C.C.R.C.P. 1915.3-8(a), disappeared that the conciliation process concluded.
It was at that time, pursuant to Cumberland County Local Rules 1915.3-3 and 1915.3-8,
and Pennsylvania Rules of Civil Procedure 1915.4(b) and 1915.4-3, that the matter
23
reached the undersigned judge for scheduling. Analyzing the plain language of the
aforementioned rules, it is clear that it was the contemplation of the conciliation process
to attempt an amicable resolution of the custody matter, especially considering that the
parties had agreed, at least once, to a recommended order of court, and that the
conciliator promptly and properly notified the court, pursuant to 1915.4-3, when such an
amicable resolution became unlikely.
Assuming that Rule 1915.4-3 and the conciliation process are subject to all the
time constraints set forth in Rule 1915.4, the custody matter sub judice was still not
subject to mandatory dismissalo Dismiss was
23
Assuming, arguendo, that Father was required to list the matter for trial within the timeframe of Rule 1915.4(b)
if he determined judicial involvement necessary, the court would have granted such a 60-day extension. The court
See
at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect
the subsdiscussed, infra, at pp. 23-24.
20
properly denied. Mother cites two recent Pennsylvania Superior Court cases for her
position that this court was required to dismiss the custody matter. In Dietrich v. Dietrich,
923 A.2d 461 (Pa. Super. 2007), the plaintiff-father filed a complaint in divorce, which
contained a count for custody, on August 3, 2005. Therefore, pursuant to Rule 1915.4, on
or before January 26, 2006, either the trial court was required to enter a schedule order, or
Father was required to request a trial or extension of the 180-day deadline. If the trial
court had granted an extension, which it did not, the extension period would have expired
on March 31, 2006. The plaintiff in Dietrich did not request a trial until May 26, 2006,
nearly two months after what would have been the expiration of the 60-day extension. On
appeal, the Superior Court concluded that the trial court erred in not dismissing the
matter, as no request for court involvement occurred for nearly 300 days. After analyzing
Rule 1915.4 and concluding that the Rule was not ambiguous, the Superior Court was
court, indicating that either party may then re-file a petition to modify custody.
In Harrell v. Pecynski, 11 A.3d 1000 (Pa. Super. 2011), the Pennsylvania Superior
sua sponte dismissal of a custody case based on
failure to comply with Rule 1915.4. In Harrell, the Berks County Court of Common
Pleas dismissed the custodId. at 1004 (Pa. Super. 2011).
Similar to the timeline in Dietrich, the plaintiff first requested a trial approximately 320
days after the complaint was originally filed,
21
custody mHarrell v. Pecynski, 10 Pa. D. & C. 5th 207, 2009 WL
6044873 (Pa. Com. Pl. Berks Cnty. 2009). Also similar to Dietrich, the plaintiff in
Harrell did not request an extension, which, if granted, would have given him an
additional 60 days. The trial court noted, however, that even if the plaintiff had been
granted an extension, the case was first listed well beyond the expiration of the would-be
extension. See Id.
On appeal, the Superior Court again focused on the mandatory language of Rule
1915.4(b), and . . . a trial court [to] dismiss
an action if the trial has not been scheduled within 180 days of filing of the pleading or if
the moving party has not been granted an extension for good cause shown. Id. at 1005.
Although expressing discontent with the mandatory language of the rule, and stating that
preferable if Pa. R.C.P. 1915.4(b) provided the trial court with discretion
whether to dismiss an action so that the fundamental concern for the best interests of the
Id., the Superior Court affirmed
under that set of facts. 10 Pa. D. & C. 5th 207, 2009 WL 6044873 (Pa. Com. Pl. Berks
Cnty. 2009).
The matter sub judice is distinguished from that found in Dietrich and Harrell, and
therefore, this court was not required to dismiss the custody matter. In the
aforementioned cases, the custody trials were first listed well beyond the expiration of
both the 180-day period and the possible 60-day extension. There was no opportunity for
22
the court to address whether the 180-day timeline should be extended, as following the
24
expiration of the additional 60-days, the rule provides no other certain option. Here,
Father filed his custody complaint on May 16, 2011. Assuming, arguendo, that the 180-
day deadline was applicable, the conciliator was required to notify the court, or a party
25
was required to request a trial, on or around November 13, 2011. Alternatively, Father
could have extended the scheduling deadline, upon a showing of good cause, for 60
additional days, which would then require dismissal of the matter if a trial was not
requested before January 11, 2011. Based on a review of the record, including the (1)
numerous conciliations, (2) agreement of parties, (3) opinion and position of Conciliator
Gilroy, (4) drug/alcohol evaluations ordered and completed, and (5) co-parenting
counseling sessions attended, it is clear that sufficient good cause to extend the 180 day
deadline was evident in the record, and such an extension would have been granted if
Father had so requested.
request to list the matter for trial, submitted to the court on December 28, 2011, would
have been timely. Unf
24
eement of the parties or
25
The court notes that requiring a party to request a trial in a non-record proceeding, such as the process utilized in
Cumberland County, would be in noticeable disjunction to the clear and unambiguous language of Rule 1915.4-3
that the matter should Furthermore, requiring a party to request a trial, pursuant to Rule
1915.4(b), would provide a party adverse to the conciliation process to request a trial from the court, regardless of
the position of the Conciliator. Alternatively, all custodial plaintiffs facing a 180-day deadline would blindly file a
praecipe listing the case for trial, which would effectively divest the Conciliator of his duties, result in the progress
made during the conciliations be for naught, and unnecessari an effect in
direct contradiction to the conciliation process.
23
Dismiss , and the
undersigned cut short discussion of the matter due to scheduling constraints. However, as
efect, if any, was the failure to request an extension, it is explicitly clear
error or defect of procedure which does not affect the substantial rights of the parties
Pa. R.C.P. 126. This court cannot consider the non-prejudicial dismissal of a custody
26
action, pursuant to 1915.4(b) and Dietrich v. Dietrich, a substantial right of a party.
to Dismiss was properly entered.
BY THE COURT,
_____________________
Thomas A. Placey, C.P.J.
26
Harrell
a trial court that dismisses a custody action pursuant to Rule 1915.4 is to (1) dismiss the custody complaint, (2)
Harrell v. Pecynski, 10
Pa. D. & C. 5th 207, 2009 WL 6044873. As this is a custody action, the parties are free to re-file a complaint and
start the process anew. Considering that the Rule mandating dismissal of a custody case, rather than permitting the
case to go to trial, is titled Prompt Disposition of Custody Cases, this court is hard-pressed to find a more absurd
result. See
24