J-A22022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Y.A.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

Z.L.

                            Appellant                 No. 504 MDA 2015


               Appeal from the Order Entered February 25, 2015
               In the Court of Common Pleas of Lancaster County
                       Civil Division at No(s): CI-14-06413


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 31, 2015

        Appellant Z.L. (“Mother”) appeals from the order entered February 25,

2015 in the Lancaster County Court of Common Pleas, which denied her

relocation petition. We quash this appeal as interlocutory.

        The trial court sets forth the relevant facts and procedural history of

this appeal as follows:

           [Y.A. (“Father”)] and [Mother] are former romantic
           partners that have one child together, [Y.A.] (DOB:[2]/14)
           (“Child”). The parties became a couple when they were
           both young and Mother began living with Father while she
           was still in high school. The parties began living with each
           other in December 2012, living with Father’s family for a


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A22022-15


           month and then Mother’s family for a month[1] before they
           were able to get their own place in February 2013.

           Mother became pregnant shortly after they moved out on
           their own. Father then lost his job and they decided to
           move to Lackawanna County because both Mother and
           Father were able to find full-time employment in the
           Scranton area with the help of Mother’s step-father’s
           niece. Prior to [Child’s] birth, Mother stopped working.
           Both parties testified that this loss of income created a
           financial struggle for the family. Mother blames Father for
           struggling to pay the household bills; however, Father
           testified that he worked long hours at his job, but could
           not make ends meet.

           Mother had [Child] in February 2014. The relationship
           continued to deteriorate and Mother left Father in March
           2014, filed a [protection from abuse (“PFA”)] action in
           Lackawanna County, and went to go live in a women’s
           shelter in Lackawanna County. Mother testified that she
           didn’t immediately go back to her family’s house in
           Lancaster County because she wanted to try to make it on
           her own without them. Mother lived in the women’s
           shelter from March 2014 until May 2014, but eventually,
           Mother did return to Lancaster County to live with her
           family.

           Both parties introduced evidence that they believe the
           other party is mentally unstable. Both parties agree that
           Mother and Father’s relationship deteriorated greatly after
           they moved to Scranton. Mother testified that Father was
           mentally and physically abusive when they were in a
           relationship together and that he threatened to commit
           suicide after Mother filed the PFA.        Father elicited
           testimony from Mother regarding her mental health
           diagnoses when she was a teenager. Mother testified that
           the mental health diagnoses are no longer an issue
           because she received counselling at that time and is an
           adult and more mature now.

____________________________________________


1
    The transcript reflects that the parties lived with Mother’s family first.



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           Mother alleged that the final incident leading up to the PFA
           occurred as follows:

              The last argument that we had, he came from work,
              he was upset already.      And I was mad at him
              because he was not leaving the bathroom clean. He
              started throwing diapers to me. And by that time, I
              have my baby with me on the bed so the diaper was
              hitting her, too. The diaper wasn’t clean so I started
              throwing the diapers, I tried to, like, cover myself
              and I kick him by accident. And he start punching
              me on my legs. After that, he wanted to take the
              baby. He didn’t want me to, like, have my baby. He
              was, like, oh, I want to be with my baby. I’m like,
              no, you’re being really aggressive right now. I don’t
              want you with the baby. And he started pulling my
              hair and grabbing my arm, and I have my baby in
              my arms to like to let me go with the baby. He just
              wanted to use her to keep me there. I did, you
              know what, you can have her. I got into the other
              bathroom of the house and I called the police. And
              the police ask him to stay out for the night. He
              came back, and when he left to work, I called a
              program that is for women who have been abused
              and they took me there and I spent there, like, a
              month.

           A final PFA was entered against Father by agreement and
           without admission. Father sent text messages to Mother
           in violation of the terms of the April 9, 2014 PFA and was
           subsequently convicted of an ICC[2] on May 7, 2014.
           Father’s conviction resulted in being placed on probation
           for six months in addition to other conditions, such as
           undergoing a psychological evaluation and attending
           domestic violence courses. Father began his counseling
           services in January 2015, directly after his release from
           incarceration.

           In the final PFA dated May 7, 2014, Mother agreed that
           Father could have supervised physical custody of [Child]
____________________________________________


2
    Indirect criminal contempt.



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J-A22022-15


          for three months and then after three months Father
          would have unsupervised custody of [Child] every other
          weekend.     Father never started the three months of
          supervised custody. Father testified that he was never
          able to exercise supervised custody of [Child] during those
          first three months because Mother would not do her part to
          coordinate with the supervisor. Mother maintains that she
          did her part and that it was Father that did not coordinate
          with [the supervised visitation center] for supervised
          custody.

          Mother maintains that Father was willfully absent from
          [Child’s] life. Father maintains that he was precluded from
          seeing his daughter because of terms of the PFA, Mother’s
          lack of coordination with the [supervised visitation center]
          supervisor, and his subsequent incarceration for
          approximately six months for violating his probation. The
          court allowed Mother to temporarily relocate to Florida in
          November 2014, pending this relocation hearing; at that
          time, Father was incarcerated in Pennsylvania. Mother
          testified that she wants [Child] to have a meaningful
          relationship with Father, but seeks to relocate to Florida
          from Pennsylvania.      Mother testified that traveling to
          Pennsylvania on a regular basis to allow Father to exercise
          periods of custody would be a great financial hardship for
          her. Similarly, Father testified that traveling to Florida
          would be a great financial hardship for him.

          Mother testified that living in Florida is better for her and
          [Child] because Mother was able to secure two jobs in
          under a month after moving to Florida-the first being a
          luggage handler at Disney Resorts and the second [is] a
          part-time position at Golden Corral. Mother testified that
          she struggled to obtain and/or maintain comparable
          employment in Lancaster County.          Prior to moving to
          Florida, Mother worked as a housekeeper in a hospital. In
          Florida, Mother lives with [Child], maternal grandmother,
          maternal     step-grandfather,    and     Mother’s    younger
                   [3]
          brother.        Both maternal grandmother and step-
____________________________________________


3
  Mother’s parents and ten-year-old brother decided to move to Florida
because of the climate and maternal grandmother’s health. They moved to
(Footnote Continued Next Page)


                                           -4-
J-A22022-15


          grandfather receive social security disability and do not
          work outside of the home.

          Now that Father has been released from incarceration, he
          is working to regain employment and get back on his feet.
          Father was unable to pay support for [Child] while he was
          incarcerated, but will be able to now. Father currently
          lives with his father and his father’s girlfriend. Father has
          relatives in Lancaster County, none of which have had the
          opportunity to form a relationship with [Child].

          Prior to the start of the relocation hearing that took place
          on February 24, 2015, counsel for both parties met with
          the court and discussed what the scope of the hearing
          [would] be. Specifically, counsel for the parties stated that
          they were not in a position to present evidence for the
          court to consider under a full sixteen factor, 23 Pa.C.S. §
          5328(a) best interests analysis. The parties agreed before
          the start of the hearing that they would like the custody
          aspect of this matter to go forward to a custody
          conference, which the court scheduled in its February 25,
          2015 Order.

Trial Court 1925(a) Opinion, filed 4/17/15, at 3-6.

      On February 25, 2015, the court denied Mother’s relocation petition.

On March 18, 2015, Mother filed a timely notice of appeal and a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(a)(2) and (b).

      Mother raises the following issues for our review:


                       _______________________
(Footnote Continued)

Pennsylvania from Puerto Rico in 2012. Mother is twenty years old. All of
their extended family is in Florida, and Mother testified that everyone speaks
Spanish there, which made it much easier for her to get a job. She also
testified that she does not have any family in Pennsylvania to help with
childcare.



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J-A22022-15


   I.      IS THE TRIAL COURT ORDER OF FEBRUARY 25, 2015, A
           FINAL ORDER THEREBY GRANTING THE SUPERIOR COURT
           JURISDICTION OF THE APPEAL?

   II.     DID THE TRIAL COURT ABUSE ITS DISCRETION OR
           COMMIT AN ERROR OF LAW WHEN IT FAILED TO
           CONSIDER THE BEST INTEREST FACTORS AS REQUIRED
           BY THE CHILD CUSTODY ACT, 23 PA.C.S. § 5328(A) IN ITS
           CUSTODY ORDER?

   III.    DID THE TRIAL COURT ABUSE ITS DISCRETION OR
           COMMIT AN ERROR OF LAW WHEN IT FAILED TO
           CONSIDER ALL OF THE BEST INTEREST FACTORS UNDER
           SECTION 5337(H) AND IMPROPERLY CONSIDERED ONE
           FACTOR TO THE EXCLUSION OF ALL OTHERS IN ITS
           DETERMINATION TO DENY MOTHER’S REQUEST TO
           RELOCATE TO ORLANDO, FLORIDA[?]

   IV.     DID THE TRIAL COURT ABUSE ITS DISCRETION OR
           COMMIT AN ERROR OF LAW WHEN IT FOUND FATHER
           POSES NO RISK OF HARM DESPITE THE LACK OF ANY
           EVIDENCE THAT WOULD REBUT FATHER’S PRESUMED
           RISK OF HARM BASED ON HIS CRIMINAL GUILTY PLEA
           FOR AN INDIRECT CRIMINAL CONTEMPT PURSUANT TO 23
           PA.C.S. § 5329?

   V.      DID THE TRIAL COURT ABUSE ITS DISCRETION OR
           COMMIT AN ERROR OF LAW WHEN IT ENTERED AN ORDER
           FOR FATHER TO HAVE SUPERVISED PRIMARY CUSTODY, A
           FORM OF CUSTODY NOT CONTEMPLATED UNDER THE
           CUSTODY ACT?

Mother’s Brief at 9-10.

         We must first address the appealability of the trial court order as it

directly implicates the jurisdiction of this Court.   The trial court contends

Mother’s appeal is improper as she seeks to appeal the denial of a relocation

request prior to the entry of an appealable custody order.         The opinion




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J-A22022-15


states the court scheduled a custody conference for April 20, 2015.      The

docket does not reflect that such a custody conference has occurred.

     On April 2, 2015, this Court ordered Mother to show cause as to why

this appeal should not be quashed as having been taken from an order that

is interlocutory and not appealable. On April 9, 2015, Mother responded to

the notice. On April 20, 2015 this Court discharged the order to show cause,

but warned Mother that the “merits panel may revisit the issue and may find

that the appeal is defective.   Therefore, [Mother] should be prepared to

address the issue at oral argument if the panel or one of the parties raises

the issue at that time”. Order, filed 4/20/15, 504 MDA 2015.

     Mother argues that the trial court clearly entered an order denying her

relocation petition after conducting a full hearing on the merits. She claims

the court granted her primary physical custody if she moved back to

Lancaster and concludes that the trial court’s order denying her relocation

petition is appealable. We disagree.

     Primarily, we observe:

        “The appealability of an order directly implicates the
        jurisdiction of the court asked to review the order.”
        Estate of Considine v. Wachovia Bank, 966 A.2d 1148,
        1151 (Pa.Super.2009). “[T]his Court has the power to
        inquire at any time, sua sponte, whether an order is
        appealable.” Id.; Stanton v. Lackawanna Energy, Ltd.,
        915 A.2d 668, 673 (Pa.Super.2007). Pennsylvania law
        makes clear:

           [A]n appeal may be taken from: (1) a final order or
           an order certified as a final order (Pa.R.A.P. 341);
           (2) an interlocutory order as of right (Pa.R.A.P. 311);

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J-A22022-15


             (3) an interlocutory order by permission (Pa.R.A.P.
             312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a
             collateral order (Pa.R.A.P. 313).

          Stahl v. Redcay, 897 A.2d 478, 485 (Pa.Super.2006),
          appeal denied, 918 A.2d 747 (Pa.2007) (quoting Pace v.
          Thomas Jefferson University Hosp., 717 A.2d 539, 540
          (Pa.Super.1998) (internal citations omitted)).

In re Estate of Cella, 12 A.3d 374, 377-78 ([Pa.Super.]2010).

        Pennsylvania Rule of Appellate Procedure 341 provides, in relevant

part:

             Rule 341. Final Orders; Generally

             (a) General rule. Except as prescribed in
             subdivisions (d), and (e) of this rule, an appeal may
             be taken as of right from any final order of an
             administrative agency or lower court.

             (b) Definition of final order. A final order is any
             order that:

             (1) disposes of all claims and of all parties; or

             (2) is expressly defined as a final order by statute;
             or

             (3) is entered as a final order pursuant to subdivision
             (c) of this rule.

             (c) Determination of finality. When more than
             one claim for relief is presented in an action, whether
             as a claim, counterclaim, cross-claim, or third-party
             claim ... the trial court ... may enter a final order as
             to one or more but fewer than all of the claims ...
             only upon an express determination that an
             immediate appeal would facilitate resolution of the
             entire case. Such an order becomes appealable when
             entered. In the absence of such a determination and
             entry of a final order, any order ... that adjudicates


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J-A22022-15


             fewer than all the claims ... shall not constitute a
             final order. ...

Pa.R.A.P. 341(a)–(c).

       We will only consider a custody order as final and appealable 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.”       Moyer v. Gresh, 904 A.2d

958,   963    (2006)    (quoting   G.B.   v.   M.M.B.,   670   A.2d   714,   720

(Pa.Super.1996)).

       “42 Pa.C.S. § 702 permits this Court in its discretion to entertain an

appeal of an interlocutory order if it is satisfied with the trial court’s

certification that there is a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termination of the

matter.” Kensey v. Kensey, 877 A.2d 1284, 1289 (Pa.Super.2005).

       Here, the court’s order provides, in pertinent part:

          5. [Mother’s] proposed relocation to Orlando, Florida is
          hereby DENIED. The Court shall issue an Opinion and
          Order fully addressing the relocation and risk of harm
          issues within fifteen (15) days of the date of this Order.

          6. Within thirty (30) days, Mother shall return [Child] to
          Lancaster County.       Pending the custody conference,
          custody of [Child] after she is returned to Lancaster
          County shall be as follows:

             a. Mother may remain with [Child] after she is returned
             to Lancaster County and retain primary physical custody
             of [Child] with Father to have partial physical custody of

                                      -9-
J-A22022-15


            [Child] to be supervised by Jesus Aponte or Sally
            Gonzalez as the parties agree.

            b. If Mother chooses to remain in Florida, then Father,
            supervised by Jesus Aponte or Sally Gonzalez, shall
            have primary custody of [Child] with Mother to have
            partial physical custody of [Child] as the parties agree.

         7. The Court finds that Father is not a risk of harm to
         [Child] so long as he completes the conditions of his
         probation and, until such conditions are completed, so long
         as his custody of [Child] is supervised by Jesus Aponte or
         Sally Gonzalez.

         8. A custody conference is hereby scheduled in this matter
         for April 20, 2015 at 3:30 p.m. in conference room # 302
         before custody conference officer, Jeanne Millhouse.

February 25, 2015 Order at 2-3.

      At the conclusion of the relocation hearing, the court stated:

         That will conclude the aspect of the relocation hearing. I
         will review all of the evidence and I will have a decision out
         as soon as possible so that there’s some certainty with
         both of the parties. I’m not going to make any final
         custody decisions… I will direct that that go to a
         conference in some form or another, whether it’s from
         Florida or up here. So that would be the next stage in
         anything that were to happen with custody. I will make
         the determinations with respect to risk of harm that are
         still outstanding, so that the only thing that will be left will
         be custody schedules.

N.T., 2/24/15 at 157 (emphasis added).

      In this case, there is no trial court certification pursuant to 42 Pa.C.S.

§ 702. On the contrary, the trial court specifically stated that it would make

the   custody   determination    at   a   later   date.   The   court’s     custody

determinations in the February 25, 2015 order are only interim as all claims


                                      - 10 -
J-A22022-15


have not been decided.     Therefore, we agree with the trial court that this

appeal is interlocutory.

      Because of our disposition of this preliminary matter, we will not

address Mother’s remaining issues.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2015




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