J. A20038/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

J.T.O. AND S.O.                         :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
C.H.,                                   :         No. 1854 MDA 2016
                                        :
                         Appellant      :


               Appeal from the Order Entered October 18, 2016,
                 in the Court of Common Pleas of York County
                    Civil Division at No. 2014-FC-001854-03


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 06, 2017

        C.H. (“Father”) appeals the October 18, 2016 order entered in the

Court of Common Pleas of York County that adopted the stipulation adopting

the amended custody order (“October 18th Order”) signed by Father and

appellees J.T.O. and S.O. (collectively, “Grandparents”) as the order of

custody of H.H. (“Child”). We are constrained to quash.

        The record reflects that Grandparents are the parents of the Child’s

mother, M.H. (“Mother”), who passed away in November 2013. (Complaint

for custody, 10/14/14 at 1, ¶¶ 1 & 3.) At the time of the Child’s birth in May

2009, Father and Mother were married.       (Id. at 1, ¶ 4.)   Child lived with

Father and Mother until Mother’s death, at which time Child continued to live

with Father. (Id.) On October 14, 2014, Grandparents filed a complaint for

custody alleging that an award of custody to Grandparents would serve the
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best interest and permanent welfare of Child because Grandparents have

always had a significant presence in Child’s life, it is in the Child’s best

interest to continue a relationship with Grandparents, and that Father has

refused to permit Grandparents to have contact with Child. (Id. at 2, ¶ 10.)

Grandparents’ complaint for custody did not allege that Father is unfit to

parent. Grandparents’ complaint sought shared legal and physical custody

of the Child. (Id. at 3.)

      On December 3, 2014, the trial court entered an interim order for

custody, pending trial, due to the parties’ failure to reach an agreement at a

pre-trial conciliation conference.   (Interim order for custody, pending trial,

12/3/14.)   The December 3, 2014 interim order awarded sole legal and

physical custody of Child to Father and granted certain visitation rights to

Grandparents. (Id. at 5.)

      On June 16, 2015, Father filed a motion for reconsideration and

emergency or special relief pursuant to Pa.R.Civ.P. 1915.4(e) that requested

the trial court to reconsider the December 3, 2014 interim order and sought

suspension of the Child’s court-ordered overnight visits with Grandparents

alleging that the Child was suffering from stress because he was “required

and forced to spend overnight visits at [Grandparents’] residence].”

(Father’s motion for reconsideration and emergency or special relief

pursuant to [Pa.R.Civ.P.] 1915.4(e), 6/16/15.)         The trial court denied

Father’s motion the same day.



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      Subsequently, the trial court entered an order that scheduled the

custody trial for October 18, 2016.         Immediately preceding trial on

October 18, 2016, Father filed a motion to dismiss proceeding that

requested the trial court to “enter an order dismissing the Complaint as the

statute granting standing to [Grandparents] in this matter at 23 Pa.C.S.A.

§ 5325(1) violates his Fourteenth Amendment rights to due process and

equal protection, as well as Article 1, §§ 1 and 26 of the Pennsylvania

Constitution.”   (Father’s motion to dismiss proceeding, 1/18/16.)     On that

same date, the parties entered into a stipulation adopting an amended

custody order. (Stipulation adopting amended custody order, 10/18/16; see

also notes of testimony, 10/18/16 at 3-10.) In that stipulation, the parties

agreed to change the terms of the December 3, 2014 interim custody order

“pending resolution of the intended Petition for Permission of Appeal” of

Father.   (Id. at 1, paragraph 3.)   The parties also stipulated that prior to

trial, Father “raised questions regarding the constitutionality of the Domestic

Relations Code relative to standing and its anti-relocation provisions.” (Id.

at ¶ 1; see also notes of testimony, 10/18/16 at 4-7.) The parties further

stipulated that the trial court acknowledged its opinion:

            as authorized pursuant to 42 Pa.C.S.A 702(b)[1] that
            said constitutional issues which had been raised by
            [Father] involve controlling questions of law as to
            which there is substantial ground for difference of
            opinion and that an immediate appeal from the order

1
 Pa.C.S.A. § 702(b) permits a trial court to certify an interlocutory order for
appeal.


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             may materially advance the ultimate determination
             of this matter regarding the rights of [G]randparents’
             visitation.

Id. at ¶ 2; see also notes of testimony, 10/18/16 at 4-10. The trial court

then entered the October 18th Order, which is the order Father now appeals

from.

        Father filed a timely notice of appeal to this court, followed by an

amended notice of appeal and a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2).        The trial court then filed a

“statement of lower court pursuant to 1925(a)(2)(ii) of the Pennsylvania

Rules of Appellate Procedure” stating that the reasons for entry of the

October 18th Order are set forth in the stipulation adopting amended custody

order.    (Statement of lower court pursuant to Rule 1925(a)(2)(ii) of the

Pennsylvania Rules of Appellate Procedure, 11/23/16.2)

        By ordered entered December 6, 2016, this court ordered Father to

show cause, within ten days of the date of the order, as to why this appeal

should not be quashed as having been taken from an interlocutory,

nonappealable order.     Father’s response was docketed in this court on

December 19, 2016, which was three days late. On January 4, 2017, this

court entered a per curiam order that discharged the show-cause order and

referred the issue of appealability to this merits panel.


2
  We note that on November 23, 2016, the trial court also entered an order
dismissing Father’s October 18, 2016 motion to dismiss proceeding. (Order
dismissing motion, 11/23/16.)


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      Father contends that the October 18th Order is a final order pursuant

to Pa.R.A.P. 341(a)(1).     (Answer of Father to order to show cause dated

December 6, 2016, 12/19/16.) It appears as though Father’s response to

the rule to show cause contains typographical errors with respect to the

subsection of the rule that Father relies upon because Rule 341(a) does not

contain a subsection (1).    Father, however, contends that the trial court’s

October 18th Order “disposed of all claims of all parties, and therefore, is a

final order.” (Id. at unnumbered page 4, ¶ 22.) As such, Father necessarily

relies on Rule 341(b)(1) which defines a final order as any order that

“disposes of all claims and of all parties.” See Pa.R.A.P. 341(b)(1).

      In Kassam v. Kassam, 811 A.2d 1023 (Pa.Super. 2002), we stated:

            Generally, “a custody order will be considered final
            and appealable only after the trial court has
            completed its hearings on the merits and the
            resultant order resolves the pending custody claims
            between the parties.”         G.B. v. M.M.B., 448
            Pa.Super. 133, 670 A.2d 714, 715 (Pa.Super. 1996)
            (quashing appeal as interlocutory where order
            allowing father partial custody pending completion of
            hearings contemplated additional hearing on ultimate
            issues in the case). In the context of finality of
            orders, we recognize the uniqueness of custody
            orders compared to orders in other civil actions. Id.
            670 A.2d at 718 n.9.

                  Child custody orders are temporary in
                  nature and always subject to change if
                  new circumstances affect the welfare of a
                  child. The Commonwealth has a duty of
                  paramount importance, to protect the
                  child’s best interests and welfare. To
                  that end, it may always entertain an



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                  application   for    modification        and
                  adjustment of custodial rights.

            Id. (citations omitted). . . .

Id. at 1025.

      In Kassam, we then set forth various cases contained in G.B., 670

A.2d 714, that addressed the appealability of custody orders and concluded

that “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.” Kassam, 811 A.2d at 1027,

quoting G.B., 670 A.2d at 721 (emphasis omitted).

      Here, the October 18th Order is not a final, appealable custody order.

First, prior to entry of this order, the court did not conduct a hearing on the

merits to determine the best interest of the Child by considering all relevant

factors set forth in 23 Pa.C.S.A. § 5328.       Second, the language of the

underlying stipulation contemplates the expectation of the trial court, and,

for that matter, the expectation of the parties, that additional proceedings

will occur; specifically, the stipulation states that the “new custody order [is]

to be effective October 18, 2016, pending resolution of [Father’s appeal].”

(October 18th Order, at 1, ¶ 3). Therefore, the October 18th Order does not

satisfy the test for appealability of a custody order as set forth in Kassam

and is, therefore, a nonappealable, interlocutory order.




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     Finally, we note that although the trial court appears to have certified

for appeal Father’s constitutional challenges in its October 18 th Order

pursuant to 42 Pa.C.S.A. § 702(b), Father failed to perfect his appeal

because he failed to file a petition for permission to appeal as required by

Pa.R.A.P. 1311(b), and therefore, this appeal could not be considered under

Pa.R.A.P. 312.   See Kensey v. Kensey, 877 A.2d 1284, 1288 (Pa.Super.

2005) (reiterating that a permissive appeal from a certified interlocutory

order will be quashed if appellant fails to file a petition for permission to

appeal).

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2017




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