If you are a lay reader cruising the net for information about how to handle your divorce, return to your search engine now in pursuit of more fertile material. Interlocutory appeals of discovery orders can numb the minds of invertebrates. But real lawyers might be interested.

In 2008 the representative of an estate (ie., dead person) brought an action for the wrongful death of his son. The action was brought against three family members alleged to be responsible for causing the child’s death. The gravamen of the case was that the decedent at fourteen years of age had access to a handgun; the defendants owned it knew that he played with it as did their 16-year-old son. The 14-year old’s parents went away, the 14 and 16-year-old got possession of the gun and the following morning the 14-year-old was found dead of a gunshot to the head. It appears uncontested that the 14-year-old took his own life.

The defense of the gun owners was that their 16-year-old asked the 14-year-old if he had the gun before they went to bed the night before the shooting and the 14-year-old said he did not have it.

In the wrongful death and survival action, the plaintiffs issued interrogatories (written questions) asking whether the defendants had sought any mental health care following the shooting. The question was objected to by the defendants (including the 16-year-old) on the basis that this question would not lead to admissible evidence. Defendants were also asked to produce documents related to a criminal trial which appears to have been brought against the 16-year old’s father. This, also was objected to. The trial court granted a motion to compel the discovery requiring the 16-year old’s mother to reveal the identity of her mental health counselor. It sustained the objection to the 16-year old’s father having to produce any notes he provided to his attorney in a criminal trial. The 16-year old’s mother did provide the name of her therapist but objected to any further inquiry on the basis that her meetings with the licensed psychologist were privileged. Concerning the defendant father’s trial notes, a letter was produced by his criminal trial counsel that the notes were taken by father and provided solely to counsel as part of the criminal defense. The trial court ordered production of the notes and the psychological records or a privilege log explicitly setting forth the basis for the objections. Two logs were produced for the psychological records; one applicable to treatment by a psychologist and a second related to sessions with a social worker employed in the psychologist’s practice. Another log was produced asserting that the notes for trial and a related deposition were made by the defendant’s father solely to assist his attorney. A second motion to compel was filed and the trial court ordered production of the material to the court in camera for review. For any laypersons who have endeavored to read this far, in camera means that the Court would examine the documents and determine whether the psychologist-patient and attorney-client were validly claimed. The defendant’s appealed that March, 2015 order.

Was this order appealable? Clearly it did not dispose of the case. But the defendants relied on Pa.R.A.P. 313. The appellee response was that even if the matter was appealable as a collateral order, this was only an order for in camera review and, as such, it could be that the appeal might be moot if the trial court affirmed the claims of privilege.

The Superior Court panel opinion pointed to Yocabet v. UPMC Presbyterian, holding that even a purported claim of privilege subjects an order to produce to appellate review under Pa.R.A.P.313. 119 A.3d 1012 (2015). This decision relied upon Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) which held that denial of a claim of privilege is appealable. The appeals court further noted that privileged materials are not subject to provisional release to a judge for review until it is determined that they are not subject to privilege. Com. v. Kyle, 533 A.2d 120,129 (Pa. S 1987); Com. v. Simmons, 719 A.2d. 336 (Pa. S. 1998). Accordingly, the orders to produce were appealable and the fact that they were to be produced to the court alone (in camera) was immaterial.

On the substantive questions, the court noted that its scope of review was plenary. Having so held, the Superior Court found no language in the trial court opinion addressing either the mental health or attorney client privilege. The opinion begins by noting that statutory privileges such as these are not to be disregarded.

In seeking to know what the defendant told her mental health professional, the plaintiff’s clearly crossed the privilege line inappropriately. The Court appears to open the door to discovery of what the therapist diagnosed, observed or opined, but the patient’s statements are out of bounds. (Opinion p. 22). On the subject of whether such declarations to a social worker fall within the ambit of the privilege the Court sidestepped the issue directly and ruled that any statement made to an agent who is part of a treatment team managed by a psychiatrist is protected. See Com v. Simmons, 719 A.2d. 336, 341 (Pa.S. 1998). Under Com v. Kyle, supra, the same principle appears to apply to a psychologist. This court however, did not extend this to social workers not working under a psychologist/psychiatrist. (Opinion 25)

On the subject of the notes taken by the defendant father in the context of the criminal proceeding at the specific request of his attorneys, these documents were also held to be attorney client privileged even though the defendant could not recall how they came about. The warranty of the attorneys representing him that they had asked their client to provide the notes (as reflected in their affidavits) was sufficient to uphold the privilege.

Although decided in a tort setting, the parsing of the extent of these privileges is worthy of consideration in both a custody and family law setting generally.

Farrell v. Regola, 2016 Pa. Super. 241 (J-A07021-16) 566 WDA 2015   Decided 11/8/16

We have written before about the subject of when and how a person can be in “contempt” of a court order. The word itself is riddled with often misunderstood meaning.  What could be worse than having a court decide that you are contemptible?

In the past week I have been called to court to prosecute or defend two of these cases. The first instance involved a request to find my client in contempt of a custody order.  The court where the matter was heard summons people to a non-record hearing where a hearing officer either recommends or denies a request for a finding of contempt.  The hearings are scheduled one per hour and if you don’t like the recommendation you take an appeal and have a record hearing before a judge.  The typical remedy of make up time for lost custody, an award of $118 in costs and a $200-300 fine makes it such that the game is not worth the candle.  I recommended to my client to do what he wanted as Step 1 would cost $1000-2000 in attorney time and an appeal would consume that much and more.  Who wins contempt proceedings?  Almost without exception it is the party who has superior financial resources. The litigant with $50,000 in net earnings has twice the staying power of the one making $25,000 and the remedies are pathetically weak.  So if you want to exhaust your opponent financially, spurious or weak contempt proceedings and appeals are a great way to win a custody war by attrition.

This week was a petition to enforce a prior court order in divorce. I had the enforcing side and the spouse had been held in contempt on at least two prior occasions for ignoring an order to sell a house. The most recent petition was filed after the house was finally sold while in foreclosure and the actual damages could be calculated and assessed as the hemorrhaging had ended.  The petition to assess the damages had been filed almost 90 days earlier but, the Respondent waited until the day before the hearing to retain counsel.  That begot a request for a continuance to prepare.

My newfound opposing counsel is resourceful. As I anticipated she came to court ready to challenge every paragraph of the petition and to assert defenses that might have had some traction two or more years ago but were effectively waived by the fact that they should have been raised in prior proceedings.  But in contempt court the rules work to the advantage of the party who plays games.  You see, they are entitled to a specific pleading setting forth how they violated the court’s orders.  Do they have to specify their defenses?  Not in Pennsylvania.  The joke is on the party seeking to enforce the order because the responding party needs to do nothing except appear in court on the appointed day. So in my case, we killed three hours of time while new counsel asserted defenses and demanded “proofs” never before articulated.  In candor, some of them had merit.  But whether the defense arguments were good, bad or indifferent, the party prosecuting the contempt never gets to see or hear about them until the case is called.  The cost of preparing a contempt hearing is always unnecessarily high because the person prosecuting the case has to conjure what the defenses might be.  Why force a party to explain why he or she disobeyed a court order or put in writing the reasons their conduct did not violate the order?  That would be efficient.

Then we get to the remedies. In under Section 3502(e)(7) a divorce setting you can at least claim attorneys fees.  But what about damages caused by a party’s refusal to comply with a court order?  You won’t find that remedy in the statute.  Support law is even worse.  Section 4345 allows 180 days of county subsidized imprisonment, a fine not to exceed $1,000 which is payable to the Court and up to a year of taxpayer funded probation.  You have to go to Section 4351(b) to get reasonable fees and costs and you have to prove the obligor did not have good cause for his failure to comply.  Once again, burden is not on the person with the duty to comply but on the person supposedly benefiting from the award.  Custody violations are covered by Section 5339 and impose the same standard as 42 Pa.C.S. 2503.  The action must be obdurate, vexatious, repetitive or in bad faith. Pa.R.C.P. 1915.12’s notice for hearing makes no reference to counsel fees as a remedy which, of course, creates a due process problem in its own right should an award be made.

The statute and the rules need to make it clear that failure to obey costs money and lots of it. The sanction of a fine or award for failure to comply should be monetary and have a temporal element. When the message gets out that failure costs $25 a day or $250 a day, people will pay attention.  Putting parents and divorcing people in prison or on parole only punishes the taxpayer without corresponding benefit to the innocent party victimized by the non-compliance.  But the starting point is to force litigants to frame the issues in writing before anyone enters the courthouse.  It takes what is supposed to be a pointed procedure and dulls it beyond recognition.

My colleague Aaron Weems reported this case on April 12. In the spirit of our U.S. Supreme Court, I offer the following concurrence with his blog but spirited dissent from what the Superior Court ruled.

In this published decision, a panel led by former President Judge Bender decides that so long as a reference is made in the pleading to custody modification it does not matter how the pleading is captioned. The problems presented by such precedent are worth some examination.

Contempt in custody is a statutory creature. 23 Pa.C.S. 5323(g). It offers five very specific remedies, none of which involve modification, In many Pennsylvania counties, the procedure for contempt is entirely different than that for custody modification. Scheduling is also handled in a very different way because the issues are typically quite limited.  The Court personnel who schedule these matters do not customarily read beyond the caption of the petition to gather what the petitioner really wants.  So it would be fairly common for a court administrator to direct a contempt petition to a hearing list where several matters are scheduled for disposition in a single day.  A custody modification requires a pretrial statement under Rule 1910.4-3.  Request modification under the contempt rules and you can skip that step.

The next question involves what goes on in the Courtroom. Most judges are going to look at a petition such as the one in this case and tell the petitioner that he or she will hear the contempt but not the modification. But pity the poor litigant who finds himself defending a contempt with a request for modification in a setting where the judge has the time to hear a custody case.  That litigant better walk into contempt court ready to try a modification and to cover the sixteen factors that must be evaluated under 23 Pa C.S. 5328. See S.W.D. v. S.A.R. 2014 Pa. Super. 146 (2014). In the case decided here, the case was remanded because the contempt court failed to cover all of the enumerated factors.

So what have we accomplished? A party can effectively sandbag the opponent if the trial judge permits it.  Both bench and bar face the prospect of stepping into court not knowing what issues will be tried on the date that a “contempt” hearing is scheduled.  Obviously a judge can stop this but it seems clear, that is not required.

The opinion correctly observes that the right to due process was not wholly violated. As the opinion notes, the request for a change in custody was written into the petition filed by the Father. But both the legislature and the judiciary have made it very clear that child custody matters require a full exposition of the facts before any modification is made.  The idea that modification can be “bootstrapped” into a petition premised upon violation of an existing order works against the very principles both the laws and the rules espouse to promote.  And the defense that contempt can be a springboard for a wholesale modification of custody because it is in the “best interests of the child” to do so, is not a strong one.  The opinion goes to some length to describe “signals” that the trial was going to be addressing modification and not merely a contempt petition. The difficulties presented, especially to pro se litigants by reliance on signals rather than the plain caption of the pleadings presents its own problems.  We have published volumes of statutes and rules intended to make clear what judicial avenue a court is taking.  We reported a decision in November, 2012 where a panel of the Superior Court affirmed the concept that modification was a distinct proceeding from contempt.  See P.H.D. v. R.H.D. The idea that a parent suffered a significant change in custody of a child where there are clearly marked legal procedures which distinguish contempt from modification and where there was a “right” way to go about it which was not heeded, creates a disturbing trend.  Moreover, it opens the door to more appeals where the Superior Court will be asked whether the notice of intention to change custody pursuant to contempt powers is “enough”.  This will be fertile ground for appeal but not productive ground. Ironically, from the opinion it appears that the contempt that had been filed was never disposed of, which begs the question of whether this case was appealable in the first instance.

In sum, we have an opinion where substance triumphed over procedure, leaving procedure badly mauled and wondering “What next?”

2016 Pa. Super. 40 (2/18/2016)

 

 

On September 28, 2014 Aaron Weems posted a blog in which he reported on a panel Decision of the Superior Court holding that a Father’s contractual undertaking to pay $10,000 to a Mother each time he sought to modify an agreed custody arrangement was enforceable. When the Mother sued to enforce the contract term and the Father filed objections stating that the contract was in derogation of public policy.  The Trial Court sustained his objections and Mother appealed.  The three judge panel decision reversed the trial court but the ruling was later withdrawn so that it could be considered by a full bench; nine of the fifteen commissioned judges.  The matter was argued in the Fall, 2015 and a new decision was issued on February 5.

The crux of the issue remains the same. The parties indeed made a contract containing this $10,000 modification “honorarium.”  When Mother sought to enforce Father (a lawyer) claimed that while he did sign the contract, the provision could not be enforced.  The law of contracts has long held that some provisions are against public policy and that those are unenforceable.  The typical examples are contracts involving illegal activities.  But Pennsylvania also has a long history of cases holding that agreements that limit child support are subject to being set aside where the Court determines that the arrangement does not promote the best interests of the child.  The Granddaddy of these cases is one where a Mother agreed to $5 a month in child support because she felt confident that helping the Father afford medical school would ultimately benefit their child.

The defendant in Huss v. Weaver 2016 Pa. Super. 24 tried to argue his way into the tent affording protection from his own agreement on the basis that paying the $10,000 charge was in some way bargaining the rights of the subject child.  The Superior Court was not buying that; noting that this was not money coming from support or a fund for the child, but Husband’s own resources.  The Court also found that the agreement in controversy contained a statement that Father was an attorney capable of earning “a large salary.”  It also distinguished a case where the Court voided an agreement that provided for one parent to pay the other parent’s legal fees if she later sought to modify the support agreement formed by the parties. Kraisinger v. Kraisinger 928, A.2d 333, 345 (Pa. Super, 2007).

There is language in this opinion which suggests that at hearing on this claim, the Defendant may be able to assert that he should be absolved of his contractual undertaking if he could show that the $10,000 payment was an impediment to his seeking modification of custody. See Slip opinion at p. 12. That, however, is not a basis to hold the agreement as violating public policy on the basis of the pleadings.  The case was remanded for hearing.

Four of the judges joined in a concurring opinion that cautioned the trial court that if the Defendant develops the right record, he might win. Penalty provisions that do not relate to actual damages are not favored in law.  The concurring opinion also notes that if facts were established that the $10,000 payment was impeding a bona fide action to protect the interests of the child, the court might come out with a different result.  So in the end, all we really know is that this kind of payment clause is not per se a violation of public policy but that its invocation will be viewed with suspicion even when agreed.

In our haste to report on last week’s Pennsylvania Supreme Court case on support duties of non-parents, we overlooked another case decided on December 21, clarifying when an order conferring standing on a party in a custody case becomes appealable.

“Standing” is the legal term for the right to be a party in a lawsuit. The kid next door may be cute but that doesn’t give me the right to seek custody of him just because I would be a better parent.  There has to be a recognized legal nexus between the natural or adoptive parents of a child and the right of some non-parent to claim custodial rights.

The case we last reported on offers a good example. The Serbian father of the children was no longer involved once the children arrived in America and birth mother married step-father.  Step-father took on the role of parent for several years and when that relationship ended step-father stepped forward and asserted that because he had acted as a parent, he had the rights of a parent.  The Supreme Court of Pennsylvania offered no comment on whether this gentleman was or wasn’t a substitute parent, but faced with a lower court decision awarding him joint legal and physical custody of the children, they decided he was eligible to pay child support for children he had half the time.

K.C. and V.C. v. L.A. is a little different. The defendant is the natural mother of L.A., who was born in 2011.  The natural parents did not do so well and a child welfare agency in Northampton County sought to have L.A. declared dependent, meaning that the child was not having basic needs met by the biological parents.  The agency secured an award of physical custody and then placed the child with a maternal aunt of the mother and a friend with whom the maternal aunt resided.  In Spring, 2013 the Court vacated the dependency placement and awarded custody to the biological father.  The aunt and her friend were given partial physical custody of the child on alternate weekends.  The Father lived with his own mother and her current husband.

Two months after being awarded custody and when the child was only 18 months old, the natural father passed away. The decedent’s mother and her husband filed to assume custody.  At that point the child had been with them for nine months although they were not part of the custody order, as Father was the actual person awarded custody.  The maternal aunt and friend filed a claim of their own noting that they had physical custody of the child for seven months under the aegis of the dependency finding. Typically when a child is found dependent as L.A. was, the agency is awarded legal and physical custody subject to their right to place the child wherever the agency deems suitable.

When aunt and friend filed to intervene, the deceased Father’s mother and her current husband objected noting that the only custody maternal aunt and friend had was under the dependency award. In other words, no court had deemed them to be fit parents. They were merely the choice placement of the agency that had taken the children away from the natural parents because basic needs were not met.

The request of aunt and friend to intervene was denied by the trial court. We don’t have that decision, but typically, the placement of a very young child with a maternal aunt is not any more than a convenience for agencies that are overwhelmed with demands just like these.  The argument of the agency goes: “Look your honor, the child is two months old and the natural parents are not getting the job done.  We don’t have a lot of places to send a two month old child and the maternal aunt and her friend seem able and sincere and we will keep an eye on them while we try to correct the problems that forced us to take the child away from his/her natural parents.” In this case, natural Father seems to have stepped up to the plate and ended up with primary custody.  Unfortunately, he died almost immediately after he won custody.

The request of aunt and friend for “standing” to try to resume custody in the wake of natural father’s death being denied, the aunt and friend filed an appeal. The Superior Court quashed (i.e., dismissed) the appeal because it was not a final adjudication of the custody action brought by paternal grandmother and her husband.  The Superior Court ruling had a precedential foundation.  It has long been the law that appeals from custody orders must relate to orders that “dispose of all claims.”  See G.B. v. M.M.B. 670 A.2d 714 (Pa. Super. 1996).  The goal here is to avoid piecemeal disposition of custody claims on appeal.

Aunt and friend were not taking no for an answer. After all, they had physical custody of L.A. for seven months and Father (while resident with his mother and stepfather) had custody for perhaps nine months.

While the basic premise of appellate rules is to not decide cases piecemeal, a large body of law has evolved concerning what are termed “collateral orders”. These are orders which do not dispose of the whole case but which may change the course of the entire litigation.  In this case, paternal grandmother was seeking custody premised upon the rights awarded to her deceased son.  Her son held those rights for nine months before he died.  The parties who had physical custody of the child for the preceding seven months asserted that they should have custody and the Superior Court said they could not even make a case.

In an opinion authored by Madame Justice Todd, the Court notes that the prevailing public policy is to avoid appellate review of cases before they have been fully decided. But, the exception to that rule is invoked where failure to permit the appeal effectively “kills” the case.  In a unanimous opinion, the Supreme Court finds that dismissal of aunt and friend’s claim was appealable because the dismissal “killed” the case.  In effect, natural Father being dead and natural mother otherwise “absent without leave” (AWOL) there were effectively only two real contestants for this infant child; the paternal grandmother whose rights arose purely from the fact that the natural father lived with her when he secured custody and the aunt whose right to custody was also “derived” from the decision of the Office of Children and Youth to place the child awarded to them with the aunt.

Unless granted the right to intervene, the aunt and her friend asserted that the petition of paternal grandmother and her husband would never be contested because there was no one with standing to contest it except for the absent natural mother. The appellants had enjoyed custody for seven months. The paternal grandmother had never had custody.  The child was awarded to her son who happened to be resident with her when he got custody and when he died.

The Supreme Court decided that (a) the order putting the aunt and friend out of court was severable from the rest of the custody case because there was no one else who sought custody and (b) any claims they might have asserted were lost because they can’t appeal from a custody order to which they were never afforded the status of parties. The Court distinguishes this from other civil orders affecting standing because there is an important and immediate impact on children.  In particular it cites In re Barnes Foundation, 871 A.2d 792 (Pa. 2005) where the Court held that the intervenors lost their right to appeal the final decision because they had not preserved an appeal on the issue of intervention.  The Court reasoned that while Barnes does not involve an issue as prescient as child custody, the principle of early intervention is all the more important where children are involved.

So the principle is clear. If a party seeking custodial rights is denied the opportunity to participate, the appeal is collateral and must be taken within thirty days of the date the order denying intervention or standing is entered.  The applicable rule is Pa. R.A.P. 313.

But let’s also consider the collateral impact of the collateral appeal doctrine with an eye cast in the direction of the announced goal of affording child custody decisions a “fast track” for disposition. The subject child was born in December, 2011.  The child is placed with aunt and friend in February, 2012.  In September, 2012, Father secures shared custody.  In April 2013, the child is awarded to Father.  He dies. In June, 2013 his mother files to be custodian.  Later that month aunt and friend file to intervene.  It takes more than 18 months for the trial court to decide that the intervention should be denied.  In 90 days, the Superior Court quashes the appeal.  The Petition for Allowance had to have been filed in April-May 2015, if timely.  The case is reported as “submitted” on October 21 and was disposed of with opinion by the Supreme Court in 60 days.  So, effectively from June 6, 2013 (date of primary custodian’s death) until December, 2015, the life of a then 18 month old child is in limbo.  That’s 31 months to decide that the folks who had physical custody for seven months did have standing to challenge the custody action of the folks who had physical custody for nine months.  We have written law telling us that these matters need to be expedited.  But this child lost a father at 18 months and still doesn’t know where he will live almost three years after father died.  The appellate process through two such courts consumed a little more than 8 months.  But it took the trial court an extraordinary eighteen months to decide whether aunt and friend had standing.  Query, if you are the trial judge on remand and looking at the factors explicated in the custody statute, does the 2.5 year status quo since father died count as a stability factor for a child whose life was little more than a series of disruptions prior to Father’s death. Under a pure “best interests” analysis that would seem to be true.  But, in a world where fairness is also a factor at some level, does the belated and ultimately erroneous ruling of the trial and Superior Courts count against the prevailing party in the subsequent proceedings?  In this case, it is difficult to justify eighteen months to decide whether a party has standing.  That delay created a status that will be difficult to undo unless the paternal grandmother and spouse have completely dropped the proverbial custodial ball.  On this record, they will defend a case against another set of claimants (aunt and friend) who have not so much as seen the subject child since April, 2013.  That amounts to 31 of the 48 months young L.A. has been alive.

Superior Court appeals relating to child custody are supposed to be “fast tracked” in recognition of the fact that in the life of a child, a year is a long time.  But, a land speed record was attained on February 11 when the Superior Court affirmed a Montgomery County Common Pleas order entered less than four months earlier.  The ruling by Judges Panella and Olson with Senior Judge Fitzgerald offers some more insight into what appellate courts are asking trial courts accomplish when conducting trials in custody cases.

The key ruling of the case is procedural.  The trial was conducted in April, 2014. The judge ordered the parties to return the following day for the Court’s ruling.  The Court spoke at length (44 pages) analyzing the factors under the custody statute and then concluding with an oral Order based on that analysis.  The judge directed his ruling to be transcribed so that the Order portion of the transcript would function as the final order in the case.  When the child’s mother appealed the Court’s ruling the Trial Court held that its oral Order was not appealable since it was not recorded on the docket.  This created an issue in its own right because Pa. R.C.P. 1915.10(a)-(b) says, in part, that “The Trial Court shall state the reasons for its decision either on the record in open court, in a written opinion or in the order.”

The rule is ambiguous and the Superior Court clearly saw the problem. The “ruling” is 46 pages and at least 27 are identified as part of the order.  It includes exchanges with counsel where clarification is sought, including a colloquy directed to what nights Father will have if he can work his schedule out.  At one point in the transcript the trial judge candidly admits that his own order is somewhat confusing.  As the Superior Court recites, much of this colloquy is aspirational and far from definitive.  The three judge panel held that a case is not concluded until a written order is prepared and placed on the docket.  Analysis of the custody factors may invite a judicial soliloquy, but the Order itself needs to be quite clear as to who has what responsibilities and when.  To the point, there must be an “Order” docketed in contrast to a direction to make a transcript an order.  Parenthetically the Court notes that the sixteen factor analysis must be completed and, in some form, articulated before the appeal period lapses.  See C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013) app. den. 70 A. 3d 808 (Pa. 2013).

The ruling by Judge Jack Panella with Judge Fitzgerald approving is noteworthy.   A fundamental premise of appellate law is that an Order is not an Order until it is filed on the docket whether entered in open court on a transcript or in a written form by the judge.  Absent a bright line test, an order would be “entered” not based upon a judge’s signature but a court reporter’s filing of the transcript.   Litigators know that depending upon county and circumstances, a transcript may not see the docket in the Prothonotary’s office for weeks or months following a proceeding.   Judges are clear that when they send an Order to be docketed, parties and or counsel need to be notified.  The Court reporter is not under that same duty which can cause precious appeal periods to be abbreviated or lost.

While the Appellant/Mother’s position was sustained procedurally in the explicit ruling that custody “orders” need to be drafted by Judges and not uttered to court reporters, her case fell apart quickly after that.  Mother raised eleven issues on appeal.  However, with respect to eight of her issues, the Superior Court found that the brief did not develop these issues except to conclude that the Trial Court ignored the testimony and reached the wrong result.  Quoting from  Lackner v. Glosser¸ the panel states: [A]rguments …where the party has failed to cite any authority in support of a contention…” are waived. 892 A.2d 21,29-30 (Pa. Super. 2006).  See also Chapman-Rolle v. Rolle,  893 A.2d 770, 774 (Pa. Super, 2006).

Two smaller points merit consideration.  In this case, some custody was awarded to a non-party step-mother.  Mother objected but the trial court noted that during this time, neither parent was otherwise available to provide care.  The appellate court buttressed this by stating that the step mother was in loco parentis based upon 23 Pa. C.S. 5324.  Mother made an issue of step-mother’s ingestion of anti-anxiety medications.  But the Superior Court found that the issue of how this affected the child was not developed. Similarly, Mother complained that the child was not interviewed. The Trial Court responded that it assumed that had either parent thought the views of the seven year old merited consideration, they would have offered the child’s testimony.  The panel concludes that it was not the duty of the Court to insist on an interview of a seven year old.  Lastly, the court dealt with the age old bane of all trial lawyers and judges; Appellant said the Court failed to consider the evidence the Mother forgot to bring to the trial.  You can guess how that turned out.

The substantive lessons are worthy of note.  It appears a non-party can have partial custody without becoming a party.  This is not earth shattering because otherwise every day care provider in America would be made a party.  Second, bring your evidence to trial if you expect it to be considered. Don’t assume the Court will take it upon itself to interview a child, although this is a topic that seems to have authority going both ways (Court needs to make record versus parties have responsibility to make the record).  And perhaps most importantly, a brief needs to cite cases or at least segments of the record where the Appellant believes error has occurred. Without one if not both of those legs, there is no appeal to stand on.

 

A recent published decision issued on November 7 addressed the question of how a Pennsylvania Court is to act when a Court of another state refuses to relinquish jurisdiction.  The facts are absorbing to say the least.

Mother and Father gave birth to a child in Tennessee.  They separated and Tennessee entered a shared custody order.  In late February, 2011 Mother left the child with Father and disappeared. Father remains a “person of interest” in the context of what is being treated as a homicide.  Maternal grandmother, a resident of Erie, Pennsylvania travelled to Tennessee and secured an Order permitting her to relocate the child to her home in this state.  Father was awarded visitation under the supervision of his own parents by the Tennessee Court. 

In October, 2012 Maternal Grandmother filed an emergency petition to suspend visits with Father alleging that Father had told the now seven year old child to burn down grandmother’s house and gave him matches to do so.  The Tennessee Court heard the matter and suspended visits.  

In December, 2013, Father filed in Erie County, PA to assume jurisdiction and modify.  In part, he states that he moved to Florida six months earlier.  Mother has never been found.  The child has been resident in Pennsylvania since some time in 2011.  The Pennsylvania Court scheduled the matter for March, 2014.  A week before the trial, Maternal Grandmother filed to challenge jurisdiction and attached her request to have the matter heard in Tennessee in April, 2014.  One day after the challenge to Pennsylvania jurisdiction was lodged; the Tennessee trial court wrote to the Pennsylvania Court observing that if Father had represented Tennessee’s position as one of deferring jurisdiction that was not an accurate recital of the circumstances.  The Pennsylvania Court stayed its proceedings in deference to Tennessee.  A hearing was held in Tennessee in April and it would appear that that state did not relinquish jurisdiction.  In the wake of those proceedings the Erie County judge dismissed the case as Tennessee was still acting.  

Father appealed.  A three judge panel opinion by Hon. Eugene Strassburger reversed.  The interesting factual challenge here was what status one ascribes to the “missing” parent.  If presumed alive, her last know residence was Tennessee.  The general rule of the Uniform Child Custody Jurisdiction and Enforcement Act is found at 23 Pa.C.S. 5423.  It says that Pennsylvania may modify the decrees of other states where those states relinquish jurisdiction OR a court determines that the child, the parents or other contestants do not presently reside in the state which had original jurisdiction.  The Court making that assessment can be either the Pennsylvania Court before whom the modification is pending or the original court of jurisdiction. Here, Judge Strassburger notes that the only potential litigant with a present Tennessee connection is the missing Mother and that her failure to appear anywhere in more than three years could not form a basis to assume that she was still alive, let alone resident in Tennessee. The Court then notes that the current incarnation of the Uniform Act places even greater emphasis upon “home state” jurisdiction in preference to significant contact jurisdiction.  By all accounts, Father is in Florida, mother remains missing and the child has lived with her Maternal Grandmother in Pennsylvania for three consecutive years.  The case belongs in Pennsylvania and deference to the original jurisdiction court was not to rule the day. 

T.AM. v. S.L.M. and D.M.S.  844 WDA 2014, 2014 Pa.Super. 255.

Note: The caption lists Mother as a party to the Pennsylvania proceeding.

As lawyers we are commonly asked to forecast judicial outcomes.  What will a court do given a stated set of facts?  Of course, it is rare for facts to be the same in the eyes of two adverse parties but even when the facts are agreed, lawyers and judges sometimes cannot agree on the law.  Thus begins the story of Carl Barrack and his suit against Sodexho and the hospital that treated him.

This is not a family law case but the November 23 ruling of the Superior Court has implications for family law and all other forms of civil (non criminal litigation).  In this decision the Superior Court reversed itself and a prior ruling by a trial court in Cumberland County.

 

Carl Barrack sustains injuries when a chair he was sitting in suddenly collapsed.  He sued the business where the chair was located and the physicians who treated him.  Under rules regulating pre-trial discovery it is fairly common and understood that the defendants he sued for his injuries are entitled to secure copies of his medical records.  In this case the defendants did precisely that. The rules allows Mr. Barrack and his attorney to object any subpoena issued by other parties to the case.  In this case the demand was for all records relating to Mr. Barrack.  It was directed to the treating physician’s employer, a hospital.  Because this was fairly routine and otherwise not the subject of objection by Barrack, the hospital produced the records of the treating physicians to the extent they reflected what was Mr. Barrack’s course of treatment from the time of admission.

 

When it published these records in accordance with the subpoena the hospital noted that Barrack’s physician had been identified as Mr. Barrack’s expert witness concerning his injuries and that records of reports and correspondence generated between the treating physician and Barrack’s lawyer were not being produced because they were not medical records concerning treatment but expert opinions related to either the nature or extent of Barrack’s injuries.

 

The defendant’s were not content with this answer.  No objection to the subpoena had been filed.  Therefore, they asserted that any objection was waived and that the trial court should compel production of all records including correspondence between the expert and Barrack’s attorney.

The trial court agreed despite the argument made by Barrack’s attorney that communications between a lawyer and his client’s expert were not permitted under the law.  The matter was appealed to the Superior Court which heard the case because it involved an assertion of privilege which, if not heard could forever harm the Plaintiff’s case.

 

A three judge panel of the Superior Court agreed with the trial court largely on the basis that the interests of justice should permit open discovery of how expert opinions had been formed.  This was contra to wide held understandings in the legal community and certainly many lawyers and experts held candid correspondence in their files concerning how an expert opinion was received.

Because this was so controversial, the parties sought immediate review by a nine judge panel of the Superior Court.  That request was granted in November, 2010 approximately sixty days after the three judge panel of the same court affirmed the trial court.

 

This panel decision prompted tremendous controversy.  The prevailing view had been that communications between a lawyer and the expert witness were not subject to inspection or inquiry. Many litigation attorneys trembled in fear that communications that they had made in pending cases with experts would now be subject to scrutiny.  These letters had been written before Barrack I was decided.

 

The case was complicated by the fact that the expert was also the treating physician.  It is clear that the physician’s treatment records are subject to review in a case for personal injuries.  But the use of the same physician as the expert witness is more the exception than the rule in this area of practice.

 

The decision is Barrack II reversed the panel decision and is a strict construction of Pennsylvania Rule of Civil Procedure 4003.5. That rule strictly limits what access a party to litigation gets to another party’s expert. The entitlement set forth in the rule is to either answers to interrogatories regarding who the expert is and what is the substance of the expert’s findings or a copy of the expert’s report. Anything beyond that is secured either by agreement or through a separate court order based upon cause shown. Pa. R.C.P. 4003.5 (a)(3). Had the Supreme Court intended for litigants to secure more by right, they would have made the rule more permissive.

 

The argument was asserted by the defense attorneys that the plaintiff’s failure to object to the subpoena was waiver of the rights set forth under the rule. The Superior Court rejected this as well noting that when the subpoena was issued it was not clear to the party issuing it that the physician had a dual role as both treating physician and expert witness. The plaintiff was within his rights to assume that the discovery material would be limited to treatment records.

 

The decision is in a civil case but it has direct bearing on family law cases involving experts of all stripes. An expert report in family law is governed by the same rule as in personal injury cases.

Over the course of the past generation, our society has begun to recognize that sexual orientation has nothing to do with a person’s merit as a worker, a parent, or a human being, in general. It is an orientation rather than an aberration, yet our courts do not have the power to create cases or to promulgate laws based on their perception of need for change. Law is developed from the cases or controversies involving real people with existing legal issues.

 So it is that as recently as 1985 the Superior Court ruled that a parent’s homosexual relationship reflected a “moral deficiency” that a Court must consider as an adverse factor in a custody case. That case, Constant A. v. Paul C.A., (496 A.2d 1 (Pa. Super. Ct. 1985) stood unchallenged for twenty-five years until a recent decision by the Superior Court. The facts of the case are as follows:

In 2006 a mother informed her husband that she was involved in a same sex relationship with another woman. The mother filed for divorce and shared custody in Dauphin County. Her husband replied by filing for primary custody of the child. A judge heard the case and ordered a shared custody arrangement for 18 months after which the child would live primarily in the custody of the father. The mother waited out the 18 month transition period and then filed for modification asking for preservation of the status quo. The mother also presented expert testimony that the shared physical arrangement was working. When the trial court rejected the modification request and relied upon the 1985 Constant A. v. Paul C.A. decision considering a same sex relationship as a “negative”, the Mother appealed.

 In deciding this case, known as M.A.T. v. G.S.T, the Superior Court heard this case en banc. Ordinarily appeals are heard by panels of three appellate judges. Only in compelling cases (as decided by the Superior Court) are matters heard by panels of nine judges. The premise is that the Court wants the legal community and the public at large to understand that it is intent upon establishing lasting precedent.

The trial court’s opinion in M.A.T. v. G.S.T., it should be noted, found both parents to be fit and interested. It also noted, however, that the Mother did not overcome the principle that a same sex relationship must be harmful to the best interests of the child.

The Superior Court ruled that this doctrine no longer squared with Supreme Court rulings that each custody cases must be decided upon its facts and that each parent has the same burden of showing what is in a child’s best interest. Language that dismissed same sex relationships as “illicit” was dismissed as antiquated. The Court also recited language from its own 1982 decision in Custody of Temos where the Court noted that prejudice against interracial relationships had no place in a custody determination. There as here, the decision in a custody case must turn upon parenting quality in contrast to public perception of whether a particular environment was normal or accepted.

The decision in MAT v. GST was published on January 21. Any appeal to the Supreme Court must be filed within thirty days.

Appeals to the Pennsylvania Superior Court and the Pennsylvania Supreme Court can delay the final disposition of a matter for well over a year or more beyond a trial court’s decision. While the effect of such a delay upon economic determinations can be dealt with through readjusting financial awards, the effect upon children can have significant, long term implications, particularly where custody of a child is transferred from one parent/guardian to another.

In an effort to expedite appeals involving children, effective March 16, 2009, the Pennsylvania Superior Court will implement new appellate rules governing custody, adoption, termination of parental rights, paternity, and dependency cases. The new rules will be known as the Children’s Fast Track (CFT). Although support cases will not be affected by the new rules, it will be within the discretion of the Superior Court’s Central Legal Staff to submit some limited support matters to the CFT.

 

The new rules are the result of the Superior Court’s efforts to eliminate unnecessary delay in the appellate process for cases involving children and provide an even more expedited process than the current Family Fast Track procedures. The new rules will only apply to those appeals filed after the effective date. Cases already pending will proceed under the existing Family Fast Track.

 

Filing deadlines have been significantly decreased or eliminated. Under the new rules, the concise statement of errors complained of on appeal must be filed simultaneously with the Notice of Appeal. The Notice must state that it is a Children’s Fast Track Appeal. Practitioners are no longer required to wait for the trial court judge to issue a 1925(b) order requiring the filing of the statement.

In order to allow the trial court to file its opinion sooner, the trial court no longer is required to cite to the transcript, or set forth a detailed opinion. The trial court is expected simply to set forth its reasons for the decision.

 

Any dispositive motions must be filed within 10 days of the opinion, or the filing of the 1925(b) statement of errors complained of on appeal, whichever occurs later. All brief covers and petitions for allowance of appeal must have the proper CFT designation if the case qualifies. Opting out of the CFT designation is not possible.

 

The brief scheduling is abbreviated. Instead of 40 days, appellant has 30 days to file a brief. Appellee now has only 21 days, not 30; and, the reply brief must be filed within 7 days, shortened from the previous 14 day time period.

 

Additional changes are incorporated into the Rules that are not specifically reference in this article. A copy of the full text of the new rules is available www.courts.state.pa.us.