J-A04005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JACK GIBSON, JR.,                                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DORRINE MCKINNEY,

                            Appellant                   No. 2447 EDA 2016


                     Appeal from the Order July 12, 2016
             In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): No. 06-08819


BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED APRIL 27, 2017

       Appellant, Dorrine McKinney (“Mother”), appeals from the order

entered on July 12, 2016, that denied her petition for contempt filed against

Appellee, Jack Gibson, Jr. (“Father”). We affirm.

       In its opinion, the trial court set forth the relevant facts of this case as

follows:

             Mother and Father are the natural parents of [“Child”, who
       was born in February of 2005]. The original Complaint for
       Custody was filed by Father on April 17, 2006. On June 19, 2006
       the parties entered into an Agreed Custody Order. The Agreed
       Custody Order provided Mother and Father shared legal custody,
       Mother primary physical custody, and Father partial physical
       custody on alternating weekends.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           On March 2, 2011 Father filed an Emergency Petition to
     Modify Custody. Father’s Emergency Petition to Modify Custody
     sought to reduce his custodial time with [Child] because at that
     time he was training for a new job. His Petition to Modify
     Custody also sought custodial time every other weekend Friday
     through Monday once he completed training. The parties
     attended a Custody Conciliation Conference on April 14, 2011. In
     the Conciliation Report issued after the conference, Master Sara
     Goren described the parental relationship as “very high conflict.”
     Father subsequently withdrew his Emergency Petition to Modify
     Custody on November 2, 2011. The Agreed Custody Order of
     June 19, 2006 remained in full force and effect.

            On January 8, 2015, Mother filed an Emergency Petition
     for Special Relief to Impose Conditions on and to Temporarily
     Suspend Father’s Period of Custody. In her Petition, Mother
     requested, inter alia, “to impose conditions on Father’s periods of
     custody because Father has repeatedly and intentionally placed
     [Child] in circumstances which risk his health, safety and well
     being.” As a result, Judge Weilheimer entered an Order by
     agreement of the parties on January 30, 2015 granting Mother’s
     Petition for Special Relief. As part of the agreement, Father
     agreed, amongst other things, to attend four (4) professional
     family counselling sessions with [Child] to focus on their
     relationship.

           On April 24, 2015, Father filed a Petition for Contempt. In
     his Petition, Father claimed, inter alia, that [Child] refused to go
     with Father on Father’s custodial time. Father’s petition was
     denied by the Honorable Gail Weilheimer on July 13, 2015. The
     Agreed Custody Orders dated June 19, 2006 and January 30,
     2015 remained in full force and effect with a minor clarification
     pertaining to the pick-up and drop-off location.

            On December 29, 2015 Mother filed a Petition for
     Contempt. Mother’s Petition for Contempt was similar to Father’s
     Petition for Contempt filed April 24, 2015 in that it mentioned
     the same incident dates and issues, but from a different
     perspective.    Mother’s    Petition   asserted   that    Father
     “communicated to [M]other that he will no longer pick up
     [Child]” and has “refused to keep [Child].” Additionally, Mother
     asked the Court for “assistance with the Father and son
     relationship.”


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            Father filed an Answer to Mother’s Petition for Contempt
      on January 7, 2016. In his response, Father asserted that he told
      Mother he would no longer “force his son to be with him after his
      son communicated he did not want to be with his father at his
      father’s residence”; that “he would not pick him up until [Child]
      is encouraged to be respectful”; that there have been numerous
      occasions in which [Child] “has refused to enter father’s
      residence”; that [Child] has called Father a “loser, uneducated,
      and under-employed”; that counseling has been sought but that
      Mother finds a way to discredit the counselors and/or the
      results; and that [Mother encourages Child] to be disrespectful
      towards Father ….

            The parties were originally scheduled for a settlement
      conference on March 2, 2016 with the hope that these issues
      could be worked out through some type of “mediation” involving
      the Court. The issues, however, were not resolved at the
      settlement conference. Therefore, the Court scheduled the
      parties for a protracted hearing on July 11, 2016. At the
      conclusion of the hearing, the Court denied Mother’s Petition for
      Contempt placing its reasons on the record. Mother filed a timely
      Notice of Appeal on August 1, 2016.

Trial Court Opinion, 9/13/16, at 1-4.

      On August 2, 2016, the trial court ordered Mother to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Mother was represented by Edward J. Fabick, III, Esquire, who had entered

his appearance as counsel for Mother on February 3, 2016, and the order

reflects that a copy of the order was mailed to counsel.     Order, 8/2/16.

Despite having representation, on August 23, 2016, Mother filed her

Pa.R.A.P. 1925(b) statement pro se.         However, Attorney Fabick, who

remains counsel of record, filed Mother’s appellate brief.

      As noted above, Mother was, at all relevant times, represented by

counsel. It is well settled that hybrid representation is not permitted, and

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J-A04005-17


pro se filings submitted by a represented party are legal nullities.        See

Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (explaining that hybrid

representation is not permitted).1 Accordingly, because the pro se filing was

a legal nullity, Appellant’s pro se Pa.R.A.P. 1925(b) statement did not

preserve any issues for appeal.2          See Linde v. Linde Enterprises, Inc.,

118 A.3d 422, 430 (Pa. Super. 2015) (stating that any issues not raised in

the    Pa.R.A.P.      1925(b)      statement     are   deemed   waived)   (citing

Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005)).

       Assuming, for the sake of argument, that we were to deem the pro se

Pa.R.A.P. 1925(b) statement properly filed, we would encounter a separate

impediment to our review: the issues raised in the counseled brief do not

coincide with the issues in the pro se Pa.R.A.P. 1925(b) statement. In her

pro se Pa.R.A.P. 1925(b) statement, Mother raised the following issues:

____________________________________________


1
  We note that there are limited circumstances where hybrid filings may be
accepted, but those instances are not present here. See Commonwealth
v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016) (deeming a pro se notice
of appeal timely despite appellant being represented by counsel because a
notice of appeal protects a constitutional right and is distinguishable from
other filings that require counsel to provide legal knowledge and strategy).
2
   While Mother’s Pa.R.A.P. 1925(b) statement was a nullity, and the
equivalent of a failure to file a concise statement, we may not simply
overlook the error as we might in a children’s fast track case pursuant to In
re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009), or remand for the filing
of a Pa.R.A.P. 1925(b) statement nunc pro tunc as in a criminal case
pursuant to Pa.R.A.P. 1925(c)(3). The case at bar is an appeal from a
contempt case in civil court, and there is no authority that permits this Court
to overlook the procedural misstep that occurred here.



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J-A04005-17


      A. The honorable custody court erred and abused its discretion
      by not taking into account [Father’s] testimony on July 11, 2016.
      [Father’s] testimony confirmed that he violated the custodial
      order on four occasions.

      B. The honorable custody court erred and abused its discretion
      by not considering [the] previous decision issued on July 13,
      2015, by Honorable Gail A. Weilheimer.

      C. Honorable Risa Vetri Ferman ruled to dismiss the contempt
      petition (exhibit A-1) resulting in no resolution to [Father]
      abiding by the custody order (exhibit B-1). This decision allows
      [Father] to continuously violate the custody order.

      D. [Father] should be granted back the days in the contempt
      petition for violating the custody order.

Mother’s Pa.R.A.P. 1925(b) statement (full capitalization omitted). However,

in her counseled brief on appeal, Mother purports to present the following

issues:

      A. Whether the trial court erred as a matter of law by failing to
      find [Father] in contempt of the Agreed Order of Custody dated
      June 19, 2006.

      B. Whether the trial court erred as a matter of law and abused
      its discretion in allowing [Father] to testify without limitation
      effectively changing the nature of the hearing from one of
      contempt to one of modification of custody.

      C. Whether the trial court abused its discretion in dismissing
      [Mother’s] Petition for Contempt without a finding of contempt.

Mother’s Brief at 4.

      Clearly, issue B from Mother’s brief concerning the allegation that

Father’s testimony changed the contempt hearing into a custody hearing,

was not presented in the Pa.R.A.P. 1925(b) statement, and, thus, was not

presented to the trial court. Therefore, were we to consider Mother’s pro se

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J-A04005-17


Pa.R.A.P. 1925(b) statement properly filed, issue B from Mother’s brief was

not preserved for appeal. Linde, 118 A.3d at 430.

     Moreover, even if we did not find a complete waiver of the issues,

Mother would be entitled to no relief. Were we to reach the merits of this

appeal and Mother’s challenge to the trial court’s conclusion that Father was

not in contempt, we would affirm the order denying Mother’s motion, and we

would do so on the basis of the measured and well-reasoned trial court

opinion.

     For the reasons set forth above, we conclude that Mother failed to

preserve any issues for appellate review. Accordingly, we affirm the July 12,

2016 order.

     Order affirmed.

     Judge Platt joins the Memorandum.

     Judge Solano files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2017




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