J-S27031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.R.,                                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

T.H.,

                            Appellant                No. 2751 EDA 2016


                      Appeal from the Order August 9, 2016
              in the Court of Common Pleas of Philadelphia County
                        Family Court at No.: OC1600174


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JUNE 26, 2017

        Appellant, T.H. (Father) appeals pro se from the order, entered by

mutual agreement, with Appellee, T.R. (Mother). The order granted Mother

primary physical custody and sole legal custody of T.H. (Child), born in June

of 2010.1 Father participated in the custody hearing by telephone because

he is incarcerated, after a conviction of first degree murder. However, he

was also represented at the hearing by counsel, who was physically present.

Father’s issue is waived because he failed to raise his sole question on

appeal in the trial court. Accordingly, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The order also granted Father weekly visits by telephone and letter writing
privileges.
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        On appeal, Father claims for the first time that he only agreed to the

order because the custody master told him that any incarcerated parent

convicted of murder cannot be granted any custodial rights at all.            (See

Father’s Brief, at 6).2 Father contends that the master gave him erroneous

advice3 because pursuant to 23 Pa.C.S.A. § 5329(b) custody is denied only if

the parent murdered the other parent.4           (See id., at 10-14).   Father also

claims for the first time on appeal that the telephone connection was faulty

and, contrary to his agreement on the record at the time, now contends that

he missed key parts of the custody master’s colloquy.

____________________________________________


2
  Mother appeared pro se at the custody hearing and did not file a brief in
this appeal.
3
  Father ignores the fact that he was represented by independent counsel at
the hearing. Father tried to enlist hearing counsel to support his version of
events, or even represent him on this appeal. (See Father’s Brief, at Exhibit
“C”). Counsel apparently declined. We note that the record in this case is
exceptionally thin, and the complete circumstances of counsel’s appearance
and withdrawal are not readily apparent. Nevertheless, because Father
raises a question of law, and the necessary context of his claim is self-
evident, our review is not impeded.
4
    Section 5329(b) provides, in relevant part:

              Parent convicted of murder.─No court shall award
        custody, partial custody or supervised physical custody to a
        parent who has been convicted of murder under 18 Pa.C.S. §
        2502(a) (relating to murder) of the other parent of the child who
        is the subject of the order unless the child is of suitable age and
        consents to the order.

23 Pa.C.S.A. § 5329(b).




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       The purported pre-hearing conversation is not included, or even

referenced, in the certified record.             Father argues that because the

conversation occurred before the master went on the record, the notes of

testimony are incomplete.          He contends that if he had received correct

advice from the master he would have refused to enter into the custody

agreement unless he received partial custody and visitation rights. (See id.

at 14).     He argues on appeal that the case should be remanded for a

consideration of the custody factors enumerated in 23 Pa.C.S.A. § 5328. We

disagree.

       Father did not raise these issues in the trial court. Instead, he timely

appealed the custody order, including a single question in his statement of

errors, (see Pa.R.A.P. 1925(b)), which is identical to the question presented

on appeal:5

             I. Whether, in a pure question of law, the [trial] court
       abused its discretion in failing to interpret the plain language of
       the Domestic Relations statute enacted under 23 Pa.C.S.
       5329(b) that was prejudicial to Appellant where the [trial] courts
       [sic] erroneous interpretation would necessitate a remand to
       further develop the relevant enacted factors of 23 Pa.C.S.A. §
       5328?

(Father’s Brief, at 4).

____________________________________________


5
  The trial court filed a Memorandum in Lieu of Opinion on September 19,
2016. The single paragraph memorandum cites the notes of testimony of
the custody hearing generically and requests quashal, but does not explain
the reasons for its decision, address the issue presented or specify where
such reasons may be found. See Pa.R.A.P. 1925(a).



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      “[T]he interpretation and application of a statute is a question of law

that compels plenary review to determine whether the court committed an

error of law. As with all questions of law, the appellate standard of review is

de novo and the appellate scope of review is plenary.” C.B. v. J.B., 65 A.3d

946, 951 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013) (citation

omitted).   “Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.” Pa.R.A.P. 302(a).

      Here, Father never presented his issue directly to the trial court,

preventing that court from taking any action on the claim.          Therefore,

Father’s sole issue is waived. See id. Accordingly, we will affirm. See In

re K.L.S., 934 A.2d 1244, 1246 (Pa. 2007) (when appellant has failed to

preserve issues for appeal, the issues are waived, and the trial court’s order

is properly affirmed.).

      Moreover, the claim would not merit relief.          “A party who has

acquiesced in an order or judgment will not later be heard to challenge it.”

Miller v. Miller, 744 A.2d 778, 783 (Pa. Super. 1999) (quoting Karkaria v.

Karkaria, 592 A.2d 64, 71 (Pa. Super. 1991).          Furthermore, Father was

represented by independent counsel at the hearing, and cannot claim he had

to rely on the legal advice of the custody master.

      Father also concedes the long settled principle that what is not of

record does not exist. (See Father’s Brief, at 16).

      As we have often repeated, matters not appearing in the
      certified record are not cognizable for appellate review; indeed,

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     they are deemed not to have transpired. See Commonwealth
     v. Wint, 730 A.2d 965, 967 (Pa. Super. 1999) (“For purposes of
     appellate review, what is not in the certified record does not
     exist.”).

Commonwealth v. Withrow, 932 A.2d 138, 140 (Pa. Super. 2007).

     As a final point, Father’s legal analysis is erroneous. He emphasizes

23 Pa.C.S.A. § 5329(b) exclusively, in disregard of 23 Pa.C.S.A. § 5329(a),

which expressly provides for the consideration of any criminal homicide in

custody matters. See also In re Adoption of S.P., 47 A.3d 817, 830 (Pa.

2012) (holding inter alia that incarceration, while not a litmus test for

termination of parental rights, can be determinative of question of whether a

parent is incapable    of providing essential    parental   care, control or

subsistence).

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2017




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