J. S76016/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


D.R.M.,                                     :     IN THE SUPERIOR COURT OF
                          APPELLANT         :          PENNSYLVANIA
                                            :
                     v.                     :
                                            :
N.K.M.                                      :
                                            :
                                            :
                                            :     No. 757 EDA 2016

                   Appeal from the Order Entered March 2, 2016
                 In the Court of Common Pleas of Delaware County
                         Civil Division at No(s): 2010-8597

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                          FILED DECEMBER 12, 2016

        Appellant, D.R.M. (“Mother”), appeals from the March 2, 2016 Order

entered in the Court of Common Pleas of Delaware County during a custody

dispute between Mother and Appellee, N.K.M. (“Father”) which, inter alia,

ordered the parties’ two minor children to attend at least five counseling

sessions to promote reconnection with Father and ordered the parties to split

the cost of the children’s sessions.    After review, we quash this appeal as

interlocutory.

        Mother and Father are involved in a highly acrimonious custody

dispute regarding their two children, who are currently ten and thirteen

years of age, which Mother initiated in 2009.       Most recently, on April 24,


*
    Former Justice specially assigned to the Superior Court.
J. S76016/16


2015, Father filed a Petition to Modify the Custody Order of May 9, 2013,

which granted Mother and Father joint legal custody, granted Mother

primary physical custody, and granted Father partial physical custody on

every other Saturday and every other Wednesday evening.                 See Order,

5/9/13.

      On June 26, 2015, after a custody conference, a Custody Master

denied Father’s Petition to Modify. On July 6, 2015, Father filed a Motion for

a Trial De Novo, which is still pending before the trial court.

      On July 9, 2015, Father filed a Petition for Contempt of the May 9,

2013 Custody Order (“Petition for Contempt”); on August 15, 2015, Father

filed a Motion to Compel Mother to Comply with the May 9, 2013 Custody

Order (“Motion to Compel”); on September 28, 2015, Father filed a Petition

for Special Relief Pursuant to [Pa.R.C.P. No.] 1915.13 for Psychological

Counseling of Minor Children and/or Parents (“Petition for Counseling”).

Mother filed responses to all three.

      On October 14, 2015, after a pre-trial conference, the trial court

entered an Order requiring Mother and Father to attend co-parent

counseling.     The    trial   court   subsequently   held   Father’s    additional

petitions/motions in abeyance.

      On February 6, 2016, Father filed an Emergency Petition to Compel

Mother to Comply with Custody Order and Contempt of Custody Order

(“Emergency    Petition”).      Mother    subsequently   filed    an   Answer   and



                                         -2-
J. S76016/16


Counterclaim. On February 23, 2016, the trial court conducted a hearing on

Father’s Emergency Petition and Father’s September 28, 2015 Petition for

Counseling. N.T. Hearing, 2/23/16, at 14. On February 26, 2016, the trial

court entered an Order finding that “Mother willfully failed to comply with the

[custody] Order of May 9, 2013[,]” and increasing Father’s partial physical

custody to every Saturday and every Wednesday evening. Order, 2/26/16.

On March 2, 2016, the trial court entered a second Order that is the subject

of this appeal, requiring the minor children to attend counseling sessions and

ordering the parents to split the cost of the sessions and attend counseling if

recommended.

      Mother timely appealed, and both Mother and the trial court complied

with Pa.R.A.P. 1925.

      Mother raises the following issues on appeal:

   1. Whether the Lower Court erred as a matter of law in entering an
      order on [Father]’s Petition for Special Relief for Psychological
      Counseling of Minor Children and/or Parents filed on September
      28, 2015 (“Counseling Petition”) and [Mother]’s Answer with
      New Matter and Counterclaim (“Answer to Counseling Petition”)
      thereto, when it failed to give proper notice of hearing on those
      pleadings?

   2. Whether the Lower Court erred as a matter of law when it failed
      to conduct an evidentiary hearing on February 23, 2016 on
      [Father]’s [C]ounseling [P]etition and Appellant’s [A]nswer to
      [C]ounseling [P]etition prior to entering its March 2, 2016 order,
      thereby denying [Mother] her constitutional right to defend a
      lawsuit brought against her?

   3. Whether the Lower Court erred as a matter of law by entering
      the March 2, 2016 [O]rder on [Father]’s [C]ounseling [P]etition
      and [Mother]’s [A]nswer to [C]ounseling [P]etition, since those


                                     -3-
J. S76016/16


      pleadings were not properly before the court on February 23,
      2016?

   4. Whether, in the alternative, the Lower Court erred as a matter of
      law when it denied [Mother]’s ability to call the minor children as
      witnesses in the [E]mergency [P]etition for [C]ontempt matter,
      since the court used evidence in that proceeding as the basis for
      its March 2, 2016 [O]rder for counseling based on pleadings
      (i.e., counseling petition and answer to counseling petition) that
      were not properly before the court?

   5. Whether, in the alternative, the Lower Court erred as a matter of
      law when it failed to create a complete record on the issue of
      counseling for the minor children by failing to determine: (a)
      [Mother]’s financial ability to pay for counseling and other
      economic issues; and (b) the necessity of psychological or any
      other counseling for the children, inter alia?

Mother’s Brief at 1-3.

      Before addressing the merits of Mother’s claims, we must determine

whether this matter is properly before us. As “we lack jurisdiction over an

unappealable order it is incumbent on us to determine, sua sponte when

necessary, whether the appeal is taken from an appealable order.” Gunn v.

Auto. Ins. Co. of Hartford, Connecticut, 971 A.2d 505, 508 (Pa. Super.

2009) (quotation and citation omitted).

      An appeal may only be taken “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)(1).

      This Court has held that “a custody order will be considered final and

appealable only if it is both: 1) entered after the court has completed its



                                     -4-
J. S76016/16


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) (en banc).

      Here, our review of the record confirms that the March 2, 2016 Order

at issue was not a final order. At the beginning of the February 23, 2016

hearing, the trial court clarified that the court was only hearing testimony on

certain petitions, stating “we are going to deal with the issue of contempt as

well as the counseling.” N.T. Hearing, 2/23/16, at 14. During the hearing,

the trial court restricted testimony pending a full custody hearing:     “We’ll

address that when we get to the custody hearing, okay?” Id. at 157. At the

conclusion of the hearing, after ruling on Father’s Petition for Contempt,

Motion to Compel, Petition for Counseling, and Emergency Petition, the trial

court confirmed that a trial was still pending on Father’s Petition to Modify:

“So we will be going to trial, and you will only go to trial on the de novo

modification.”   Id. at 172.   The trial court found that Mother had willfully

disobeyed the court order and increased Father’s visitation until the trial.

Id. at 158; see Order, 2/26/16. A review of the docket reveals that the trial

date has not yet been set. See, CCP (Del. Co.) Docket. Thus, it is clear that

the court did not enter the March 2, 2016 Order after completing its

hearings on the merits, and did not intend that Order to constitute a

complete resolution of the custody claims pending between the parties.




                                     -5-
J. S76016/16


      Mother argues that “this matter represents a collateral order doctrine

appeal[.]” Mother’s Brief at 3. Rule 313 permits an appeal from a collateral

order, which 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. “[E]ach prong of

the collateral order doctrine must be clearly present before an order may be

considered collateral.” Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003).

      In Miller v. Steinbach, 681 A.2d 775 (Pa. Super. 1996), this Court

expressly rejected the argument that an order requiring psychological

counseling and payment in a custody matter prior to the final custody

determination is a collateral order. In Miller, the appellant-father attempted

to appeal from an order directing him to submit to and pay for psychological

evaluations, claiming that the trial court violated his right to due process by

requiring him to pay for the evaluations. Id. at 778. This Court quashed

the father’s appeal, concluding that the order was not final and failed to

meet the requirements of the collateral order doctrine:

      Under this test, [Pa.R.A.P. 313,] we find that the order issued by
      the lower court was not appealable. While appellant’s right is
      extremely important and deserves consideration, we do not find
      that the order was separable and collateral to the main cause of
      action. Appellant filed a petition for partial custody of his child.
      The court ordered that he undergo and pay for psychological
      evaluations before the court would resolve the custody issue. In
      effect, the issue concerning the psychological evaluations
      is intertwined with the issue of whether appellant should
      be granted partial custody of his minor child.


                                     -6-
J. S76016/16



      In addition, we find that the question presented in appellant’s
      appeal is not such that if review is postponed until final
      judgment in the case, the claimed right will be irreparably lost.
      Appellant’s argument that he was denied due process by the
      lower court’s order that he pay for the psychological evaluations
      can be presented on appeal once the lower court has issued a
      final order on the matter.

Id. at 778 (emphasis added).

      Similarly, in this case, the trial court ordered psychological counseling

and required both parents to pay for it prior to issuing a final order in the

case. See Order, 3/2/16. Pursuant to Miller, the March 2, 2016 Order fails

to meet the requirements of the collateral order doctrine, as it is not

“separable and collateral to the main cause of action” because the “issue

concerning the psychological evaluations is intertwined with the issue of . . .

custody . . . .” Miller, supra at 778. Further, the question presented “is

not such that if review is postponed until final judgment in the case, the

claimed right will be irreparably lost.” Id.; see Pa.R.A.P. 311.

      Accordingly, the March 2, 2016 Order is neither final nor collateral.

We are, thus, without jurisdiction to address Mother’s claims, and we must

quash the appeal.

      Appeal quashed.1




1
 Father’s unsupported request for attorney’s fees summarily asserted at the
end of his Brief is denied.



                                     -7-
J. S76016/16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/12/2016




                          -8-
