J-S32017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 A.R.                                    :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 H.P.R.                                  :
                                         :
                    Appellant            :    No. 159 EDA 2019

            Appeal from the Order Entered November 20, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                           No(s): 2018-00303


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.:                             FILED JULY 25, 2019

      H.P.R. (Father) appeals pro se from the order denying his emergency

petition to modify custody with respect to his now eighteen-year-old daughter,

A.M.R. (Child), and his emergency petition for contempt in custody. For the

reasons that follow, we dismiss Father’s appeal as moot.

      The relevant factual and procedural history of this appeal is as follows.

Father and A.R. (Mother) married in May of 1997. Three children were born

during the marriage: R.R. (born in October of 1997), H.R., III (born in

February of 1999), and Child (born in May of 2001). The parties separated in

late 2017, and Mother filed a complaint in divorce on January 9, 2018.

Thereafter, on March 23, 2018, Father filed an answer and counterclaim to

the complaint in divorce, seeking, in relevant part, shared legal and physical

custody of Child.
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        On May 9, 2018, the trial court entered an agreed-upon temporary

custody order, providing Mother and Father with shared legal custody. Order,

5/9/18, at 1. Mother obtained primary physical custody. Id. at 1-2. Further,

the order required Father and Child to attend therapeutic reunification

counseling.     Id. at 2.     By order entered May 25, 2018, the trial court1

appointed Gerald Cooke, Ph.D. as a custody evaluator, and it required Mother

and Father to share the costs evenly. Custody Evaluation Order, 5/25/18.

        On August 14, 2018, Father filed an emergency petition to modify

custody and an emergency petition for contempt. In the emergency petition

to modify custody, Father sought full physical custody, accusing Mother of

engaging in improper parenting and causing Child to be alienated from him.

Emergency Pet. for Modification of Custody Order, 8/14/18, at 8.       In the

emergency petition for contempt, Father asserted that Mother refused to

return the paperwork and payment for Dr. Cooke to conduct a custody

evaluation. Emergency Pet. for Civil Contempt for Disobedience of Custody

Evaluation Order, 8/14/18 at 5.

        The parties appeared for a hearing on September 21, 2018.      At the

hearing, Mother and Father reached a tentative resolution of Father’s petition

for contempt. By order entered September 26, 2018, the trial court awarded

Father partial physical custody of Child for a two-hour brunch each Sunday

____________________________________________


1   Judge Rhonda Lee Daniele presided over this matter until November of 2018.




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and a two-hour dinner each Wednesday2 and directed Father and Child to

resume reunification counseling.           Order, 9/26/18, at 2.   The order also

provided that if “Plaintiff-Mother and [Child] comply with this [o]rder, it is

understood that the contempt petition will be withdrawn by Defendant-Father,

and no sanctions imposed.” Id. at 3. Further, the trial court scheduled a

custody hearing for November 2018. Id. at 2.

       At the hearing on November 19, 2018, Father, acting pro se, presented

the testimony of Mother, Father, and H.R., III. The trial court also conducted

an in camera interview of Child.3 At the conclusion of the hearing, the trial

court evaluated the custody factors on the record and ruled against Father.

       On November 20, 2018, the trial court entered the order denying

Father’s petitions, directing Father to participate in individual therapy and

anger management, and requiring Mother and Father to participate in family

therapy. Order, 11/20/18, at 1-2. The trial court declined to enter a formal

custody schedule, while noting, “[Child] may visit with her Father at her

discretion and is encouraged to do the same.” Id. at 1.

____________________________________________


2  The order specified, “Defendant-Father shall not converse with [Child]
regarding the parties’ divorce, financial matters, litigation, and/or Plaintiff-
Mother’s personal life.” Order, 9/26/18, at 2.

3 Judge Carolyn Tornetta Carluccio presided over the November 19, 2018
hearing and entered the November 20, 2018 order that is the subject of this
appeal. Child was approximately seventeen and one-half years old at the time
of the hearing.




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       On December 19, 2018, Father timely filed a notice of appeal. Father

filed a Pa.R.A.P. 1925(b) statement on January 17, 2019.4         Father’s Rule

1925(b) statement consists of ten single-spaced pages, in which he asserts

that (1) the trial court erred in its analysis of numerous custody best interest

factors, (2) the court precluded Father from presenting sufficient evidence of

alienation, and (3) Mother’s pre-trial statement contained “many falsehoods”

that the trial court improperly took into account.5 Concise Statement of Errors

Complained of on Appeal, 1/17/19, at 2-7.        Father also challenged “[t]he

dismissal of Judge Daniele’s order for a custody evaluation.” Id. at 7.

       On appeal, Father has filed a pro se brief that does not comply with

Rules of Appellate Procedure governing the form and content of an appellate




____________________________________________


4 Father failed to file a concise statement of errors complained of on appeal
concurrently with his notice of appeal in violation of Pa.R.A.P. 1925(a)(2)(i)
and (b). On December 27, 2018, the trial court issued an order directing
Father to file a concise statement within twenty-one days. Father timely
complied. Because Mother does not claim prejudice as a result of Father’s
procedural violation, we will not quash or dismiss his appeal as a result of this
procedural misstep. See In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super.
2009); cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010) (holding that
appellant waived all issues by failing to file a concise statement of errors
complained of on appeal when directed by the trial court).
5  Mother filed a motion to quash, asserting that Father’s Rule 1925(b)
statement did not concisely or specifically identify the rulings or errors he
intended to challenge on appeal. This Court denied the motion without
prejudice. Mother has not renewed her objection to Father’s Rule 1925(b)
statement.




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brief.6 However, it appears that Father intends to challenge the trial court’s

findings of fact and conclusions of law with respect to the court’s denial of his

emergency petition to modify custody. Father “respectfully requests that the

decision of [the trial court] be overturned and [Child] be removed from . . .

Mother’s house immediately. [Child’s] 18th birthday is only weeks away

and even a few days with Father would go a long way in reconciling

the alienated relationship.”7 Father’s Brief at 43 (emphasis added). Father

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6  Among other issues, Father’s brief does not contain a statement of the
questions involved or a summary of the argument. See Pa.R.A.P. 2116, 2118.
Although Father includes a lengthy background section, there are essentially
no references to the record to support the facts he asserts. See Pa.R.A.P.
2117(a)(4) (requiring, in relevant part, that a brief contain “[a] closely
condensed chronological statement, in narrative form, of all the facts which
are necessary to be known in order to determine the points in controversy,
with an appropriate reference in each instance to the place in the record where
the evidence substantiating the fact relied on may be found”). Father includes
a section entitled “Errors by the Trial Court.” See Pa.R.A.P. 2119 (setting
forth the requirements of the argument section of a brief). However, Father
fails to include citations to authority beyond quoting various portions of 23
Pa.C.S. § 5328(a).       See Pa.R.A.P. 2119(a), (b) (requiring a properly
developed argument for each question presented including a discussion of and
citation to authorities in appellate brief); Commonwealth v. Buterbaugh,
91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (failure to conform to the
Rules of Appellate Procedure may results in waiver of the underlying issue).

This Court could dismiss this appeal based on a defective brief. See
Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996). However,
we will construe Father’s brief liberally. See id. (reiterating that this Court
may construe a pro se litigant’s material liberally but will not act as his
attorney).

7Father certified that he served his brief on April 14, 2019, approximately one
month before Child’s eighteenth birthday.




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also asserts that the trial court erred in dismissing the fact that Mother failed

to comply with the Judge Daniele’s prior order for a custody evaluation.8 Id.

at 43.

         Generally, in custody cases under the Child Custody Act, (“the Act”), 23

Pa.C.S. §§ 5321-5340, our standard of review is as follows:

         In reviewing a custody order, our scope is of the broadest type
         and our standard is abuse of discretion. We must accept findings
         of the trial court that are supported by competent evidence of
         record, as our role does not include making independent factual
         determinations. In addition, with regard to issues of credibility
         and weight of the evidence, we must defer to the presiding trial
         judge who viewed and assessed the witnesses first-hand.
         However, we are not bound by the trial court’s deductions or
         inferences from its factual findings. Ultimately, the test is whether
         the trial court’s conclusions are unreasonable as shown by the
         evidence of record. We may reject the conclusions of the trial
         court only if they involve an error of law, or are unreasonable in
         light of the sustainable findings of the trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

____________________________________________


8 As to Judge Daniele’s order for a custody evaluation, Father’s argument
consists of the following:

         Judge Carluccio gave no reason for the dismissal of the custody
         evaluation order ordered by Judge Daniele. She just dismissed it.
         Mother suffers from serious Cluster B personality disorders and
         she is infecting the children with the same. Mother refused to
         comply with Judge Daniele’s April 24th 2018 order and Judge
         Carluccio let her get away with it. In Judge Carluccio’s court, there
         is no rule of law.

Father’s Brief at 34. We conclude that claim is waived based on the failure to
develop a proper argument. See Pa.R.A.P. 2119(a), (b); Buterbaugh, 91
A.3d at 1262; see also Smathers, 670 A.2d at 1160. In any event, we note
that Father’s argument fails to discuss the September 21, 2018 hearing and
Judge Daniele’s September 26, 2018 order.

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       The Act defines “child” as “[a]n unemancipated individual under 18

years of age.” 23 Pa.C.S. § 5322. When discussing a former version of the

Act, this Court observed:

       A “child” is defined in this Commonwealth for domestic relations
       purposes,      including   custody      proceedings,      as    “[a]ny
       unemancipated person under 18 years of age.” 23 Pa.C.S.[] §
       5302 [(repealed effective Jan. 24, 2011)]. The trial court’s
       jurisdiction in these proceedings is limited to proceedings
       involving children. Though appellant functions at a moderate level
       of retardation, chronologically she was eighteen years old at the
       time the trial court issued its order. Thus, because she was not
       a child at that time, the trial court was without proper
       subject matter jurisdiction. While other remedies may be
       available to the mother, she cannot compel appellant to
       visit her through this type of action. Therefore, we reverse
       and set aside the trial court’s order. This decision is in accord with
       Schmidt v. Schmidt, . . . 459 A.2d 421 ([Pa. Super.] 1983) in
       which we held that an adult cannot be compelled by court order
       to visit a parent against his or her will. Schmidt also involved an
       adult daughter with reduced mental capacity. However, unlike the
       facts in the case before us, there was strong evidence in Schmidt
       that the parent seeking visitation was abusive and evoked intense
       feelings of fear and anger in the daughter.

Walker v. Walker, 523 A.2d 782, 784 (Pa. Super. 1987) (some citations

omitted) (emphasis added).9




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9 We acknowledge that Walker applied the definition of “child” under a prior
version of the Custody Act. Walker, 523 A.2d at 784. The current version of
the Act contains an almost identical definition. Compare 23 Pa.C.S. § 5302
(repealed effective Jan. 24, 2011) (“[a]ny unemancipated person under 18
years of age”), with 23 Pa.C.S. § 5322 (“[a]n unemancipated individual under
18 years of age”).


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       The inability of a court to provide the relief requested by the party also

implicates the mootness doctrine. As this Court has explained:

       As a general rule, an actual case or controversy must exist at all
       stages of the judicial process, or a case will be dismissed as moot.
       An issue can become moot during the pendency of an appeal due
       to an intervening change in the facts of the case or due to an
       intervening change in the applicable law. In that case, an opinion
       of this Court is rendered advisory in nature. An issue before a
       court is moot if in ruling upon the issue the court cannot enter an
       order that has any legal force or effect.

In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (citations and quotation

marks omitted).10

       Here, Child turned eighteen in May of 2019, while this appeal was

pending. Because Child is now eighteen years old, neither Mother nor Father

may be awarded legal or physical custody of Child pursuant to the Act. See

Walker, 523 A.2d at 784.           Further, Child is now free to live with Mother,

Father, or neither parent. See id. Father’s request for his now-emancipated

daughter to “be removed from [Mother]’s house immediately” is inconsistent

with any relief available under the Act or that which this Court could provide




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10There are exceptions to the mootness doctrine when: “1) the case involves
a question of great public importance, 2) the question presented is capable of
repetition and apt to elude appellate review, or 3) a party to the controversy
will suffer some detriment due to the decision of the trial court.” D.A., 801
A.2d at 616. This matter implicates none of the exceptions.



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on appeal.     See id.     Therefore, we conclude Father’s appeal is moot and

dismiss this appeal.11

       Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/19




____________________________________________


11 Had we not found Father’s issue to be moot, we would determine that the
trial court’s conclusions do not involve an error of law or abuse of discretion.
We may reject the conclusions of the trial court only if they involve an error
of law or are unreasonable in light of the sustainable findings of the trial court.
See V.B., 55 A.3d at 1197.            Here, the trial court adequately and
comprehensively explained its findings, and the competent evidence in the
record supports them. Therefore, Father’s arguments, which essentially ask
this Court to reweigh the evidence, would merit no relief. See id.



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