Today a news outlet called NJ.com reported a recent 37 page decision by a New Jersey trial court adjudicating the question of whether a Father had legal authority to stop the mother of his eleven year old daughter  from taking the child to a concert by the singer-songwriter Alecia Beth Moore. Ms. Moore is known primarily through her stage name “Pink.”

In case the suspense is overwhelming, indeed the 11 year old did secure judicial consent to attend her first rock concert in Newark, NJ. It appears that this decision may have come a year ago, but has now been deemed newsworthy.

The more challenging question is whether Courts ever have a right to “just say no” to every parental controversy that comes down the pike. Those familiar with the procedural laws governing child custody matters know the rules are stacked in favor of holding hearings on every controversy, no matter how small.  At this time of year, the subjects du jour are fights over summer camp and vacation schedules. Come August, children who have spent significant time with non-custodial parents will profess that they don’t want to return to the primary custodian.  And from November 1 through to December 23, courts will see the primary focus of their work become just how to balance Thanksgiving, Christmas and mid-winter recess holidays.”

Next year’s budget is still in limbo but the Pennsylvania Courts are asking for $350,000,000 and the governor is proposing about $320,000,000.  Each year, there is more and more demand for “efficiency” in the judicial system. But how can one quest for efficiency in a world where an elected official sitting as a judge must pour over the lyrics of a middle aged rock star to assess whether the minor will be corrupted by hearing those lyrics in melodic form at 100+ decibels.  Pennsylvania judges, without support staff, cost about $4,000 a week or roughly $100 an hour. Is every issue worthy of those kinds of resources? And are we making good use of legal talent and training to decide whether the transition on Christmas Day should be at noon or six o’clock. Should the mother or father who wants to relocate to another state to pursue a job opportunity or care for a dying relative have to wait in line for their day in court while judges hear these issues? Should the taxpayer be asked to underwrite the cost of having a Court evaluate whether “Pink” is too raunchy and/or too loud for an eleven year old to experience? Our world is filled with some very serious problems. We are told our government resources to address those problems are limited. Are some of these matters really problems?

Realize that courts cannot be the unsupervised monitors of their own caseloads. This invites judges to dodge questions of importance because they are either uninteresting or difficult. But if trial courts refused a case on the basis that it was not worthy of judicial consideration, there should be a right to immediate appeal with the sole question being: “Is this truly a legal case or controversy?”  Certainly appellate courts would give wide berth to trial courts to consider matters where adjudication is “needed.” But courts were not created to act as substitute parents and taxpayers should not be asked to underwrite trials devoted to assessing whether “Pink” is a worthy cultural experience or an auditory menace. If two loving parents cannot manage that decision on an agreeable basis, let them pay an arbitrator to do the right thing without burden to jurists or taxpayers.

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.

 

My colleague Aaron Weems has already reported that late last month the Pennsylvania Supreme Court put an end to what was a five year experiment with court appointed ombudsmen tasked to decide minor custody disputes where the need to have a prompt resolution outweighed an assessment of how a particular custody issue affected a child’s best interests.

The Order from the Supreme Court came as a surprise to the domestic relations bar. The program was not without its problems and some of those problems were substantial. But parent coordination was created as a device to address “high conflict” custody disputes where the parties were already making frequent use of the judicial system to decide matters that had more to do with their power in contrast to the interests of the children. Because it often takes months to have a dispute decided by a judge, it was thought that it was both economically and temporally more efficient to assign routine disputes to an experienced family law attorney who would have more flexibility to resolve the dispute quickly and without fanfare. Parent coordinators were never intended to decide the underlying schedule for the children or the difficult issues of private school, relocation or the like. But when the questions related to summer vacation or whether the karate tournament was “trumped” by the decennial family reunion, it was felt by many on the bench and in the bar that a prompt decision was better than the wait and the cost associated with getting a judicial official to weigh in with his or her powers.

Obviously the Supreme Court saw this differently and said as much in its order repudiating the entire system. The Court noted that custody decisions were a uniquely judicial function and that judges were the only persons empowered to make decisions of this kind. In a technical sense, the Court was absolutely correct. The law has long held that child custody decisions were too important to be delegated to people who were not appointed or elected to serve as judges. But, in so doing, the Court seems to have missed a couple of major considerations. Those considerations merit some attention as does as discussion of what was wrong with parental coordination as it evolved over time. In the end, this writer submits that parent coordination needed reform but it abolition has worked to the detriment to all participants in the judicial process. The bench, the bar, parents and, yes, even the children, will ultimately lament the death of this quasi judicial system of dispute resolution.

The first and most important point is that what comes before courts in the guise of a custody dispute has evolved over time. Forty years ago custody law was pretty easy to predict. When a couple separated mother was awarded primary custody and father was assigned “visitation” not to exceed one day a week or every other weekend. Folks who came to court with lesser decisions such as whether their son should play football after his second concussion or whether private school was necessary were often told that the Court was not going to address “minutiae” and to “go out in the hallway and settle this.” In some Pennsylvania counties this is still the case. But times have changed and today Courts have seen an explosion in special relief petitions. Some of these disputes have been ever present. Each year parents seem to think that Thanksgiving and Christmas will magically be resolved, only to find that it is not. This week one of our lawyers will begin a custody trial to decide what should be done with the “odd” week of Summer, 2013 where the parties otherwise seem to agree to divide Summer equally. These disputes have much to do with poor planning and little to do with “best interests.”

The new breed of disputes includes whether children can be removed from school to vacation in Florida or the Caribbean. Parents now seem to be prepared to fight over what activities their children should or should not be involved in. They fight over what camps their children should attend. And last but no least are the weighty questions of whether the show rabbit contest or middle school play should prevent a child from attending his or her mother’s most recent wedding.

Respectfully, these decisions have nothing to do with best interests and everything to do with “power and authority.” If a child has been working with one parent to build a soap box vehicle only to learn that the derby is the same day the child’s mother is getting remarried, we have a conundrum but not one that affects the best interests or welfare of the child. Someone needs to resolve this dispute. That can’t be contested. But do we really require that a judge lay aside his or her other business to decide this. Is that an efficient use of judicial time in a world where more and more citizens are coming to court without lawyers. How many hours of testimony should be allocated to hearing Father testify about how the soap box car was built? Should there be a limit on cross examination? How many questions must mother endure concerning her ignorance or cavalier indifference to the needs of her son to attend the derby? I was recently slated to speak on a panel with an appellate judge. At the last moment he mailed all of his fellow panel members to advised that the seminar was the same weekend as his child’s bar mitzvah. Of course he has to cancel. But had he been a mere mortal who scheduled his son’s bar mitzvah on the same weekend as the playoff game, or the soap box derby or the rabbit competition, he might have had bigger problems than he faced with his fellow seminarians. He might have found himself sitting outside a courtroom while an elected official found time to weigh the benefits of bar mitzvah versus playoff game in which his son was slated to pitch.

These decisions cannot be dismissed as frivolous but as we noted, they have little to nothing to do with protecting children or assaying what is in their interests. They are the perfect place for a neutral outsider who has some experience with the family to call “ball or strike.” These parent coordinators do charge for their time but their cost is a fraction of what litigants spend to have pleadings prepared so that their attorneys can spend hours in the hallway of the courthouse waiting for a judge to break from his daily fare of litigation to take up the emergency baseball versus bar mitzvah dispute. Where a parent coordinator is familiar with the dynamics of the family, he or she can also bring to bear the experience of the family in making the decision. Perhaps Father has “won” the last three demands for intervention and it is time for Mother to get a “win” in her column. Judges are not going to bring that experience to the table unless this is one of those families who makes a court appearance every 8-10 weeks.

Having now sung the praises of coordinators, I close by observing that the system was not without its failures. The truth is that lots of high conflict families chewed through a succession of coordinators like weevils through cotton. There were reports of coordinators who were quick to intervene because it was a way to augment their professional practice income. Last but not least were those who were frustrated would be judges who loved to exercise “authority.” Many coordinators seemed to not apprehend that parent coordination was not a means to compensate for one party’s refusal to plan or even look at a calendar. Yes, there were problems. But in a world where Courts are being asked to live with fewer resources and more and more citizens have decided to dispense with attorneys, it is a system that warranted more consideration than it got last month.

It was Monday morning in Media, Delaware County, Pennsylvania. The daily “list” of special relief petitions had almost thirty matters on it for disposition. The good news was that ten of them had either been withdrawn or “continued” to a later date. The bad news was that an unscheduled “emergency” would mean that the judge would be delayed by an hour in ascending the bench to hear the twenty matters left for disposition.

My matter had evolved into a dispute over $60,000 in interim distributions. But in Courts, matters do not proceed in order of the amount in controversy.  Often there is no rhyme or reason in what order matters are heard.  Judges prefer to dispose of any settled matters first because it lessens the list.  Some will take the cases in the order on the list.  Others will ask how long the parties will take to present their cases and proceed first with those matters requiring the least amount of time.

Sit in any courtroom in Pennsylvania and you will obtain an education.  You will see lawyers and their clients fight over matters of great magnitude.  Others will grapple over the ridiculous and then move on to the sublime.

In court today and ahead of my matter were two lawyers whom I respect. Alas, the fight of the day did not warrant their level of skill. The dispute?  How an affluent couple would divide their summer cottage between them for the season ahead. By the time the Court reached them on the list each client had an investment of $ 1,500 in legal fees.

Great news for the lawyers, right? Really, no. All but the greediest of attorneys would have happily avoided this morning of watching and waiting for their fifteen minutes of fame.  This is what lawyers term a “power fight”. It rarely has to do with the merits of the summer schedule.  Take each party aside and ask them why they are there and the answer is: “He/She has pushed me around enough.

I want my six weeks this summer when I want it.  I have been dictated to enough.”

We have previously written that there are times when “principle” warrants a courtroom battle.  This is not one of them. There is very little principle attached to whether husband or wife gets the last week of August or the fourth of July. Certainly, even wealthy people will not be happy to see their invoice for May legal services include $2,000 for the battle for Independence Day. One other thing.  Rarely does any litigant win a clear victory in these battles.  Compromise is what judges do except where they perceive huge injustice.

So what needed to happen? As we stood in the back of the Court waiting for the proceedings to begin, the comment was made that almost any lawyer in the Courtroom could have resolved the controversy fairly in 10-15 minutes after hearing both sides out. The parties did not need a jurist to decide this matter.  They just needed someone neutral who would hear both sides out and make the decision. Instead, the parties sat for three hours waiting for the judge to reach them.  When he did, the job was done and fairly.  But lawyers sat and client’s paid for hours of waiting.

We have previously suggested that in a world of expensive legal services clients should pick their legal fights carefully.  If the dispute does not require specialized skill but only a brief argument and a prompt disposition ask your lawyer whether you and your spouse can appoint someone to dispose of it quickly. Chances are you will pay that person.  But that will get you a result and your neutral will put you to the head of the line.

Having been through a spate of trials and hearings over the past few months, it has come to our attention that many clients have little familiarity with how courtrooms actually work.  Ironically lawyers assume that clients know how trials work.  Litigation is what we do every day.  Clients also tend to assume they know more than they actually do.  Their experience with trial comes from television. Unfortunately, they miss a crucial distinction. Judge Judy and Judge Joe and all the other television judges are there to provide amusement. Real court is much more formal and is directed toward exploring all the relevant facts in a question and answer format.

In Pennsylvania, real court can come in the form of proceedings before a master or before a judge.  The difference is not terribly different if you are a litigant.  Masters are lawyers appointed by elected judges to take evidence and publish recommendations concerning support and property issues.  We are commonly asked whether these folks are “real judges.”  Technically, they are not because they have not been elected to their positions. But, they have their jobs because judges respect their viewpoints. Even though a master’s ruling can be appealed to the judge, many judges rely heavily on what their masters have recommended.

Whether trial is before a judge or a master, the procedure is usually the same. The party who filed first (the plaintiff) puts on his or her evidence first. Evidence usually comes in two forms.  Testimony and documents corroborating testimony. As the plaintiff goes first in starting the trial, the plaintiff has the right to choose what witnesses appear in what order. That can even include situations where the plaintiff starts the case by calling the defendant as a witness. It can be very unsettling to be told by your attorney that your spouse will proceed first only to find out one minute later that your spouse has elected to make you the first witness to testify.

Trial is like a baseball game.  Let’s assume that you are the plaintiff.  Your team is up to bat first.  Your testimony is conducted by your lawyer, It’s the lawyer’s job to cover with you every salient fact that needs to be put into evidence. Once your examination is completed, you cannot bank on getting another chance to tell your side of the story to the court. With rare exception, the excuse that you left the documents at home or at the bank or at Aunt Sadie’s does not work.  The court wants the documents when the witness it testifying.

Once you finish telling your story under the direction of your lawyer, your spouse’s lawyer gets to ask you questions in what is called “cross examination.” During what lawyers simply term “cross”, that lawyer can ask you questions that are leading. “Isn’t is true that…..” “You never told your spouse that you borrowed from your retirement account, did you?” The point of cross examination is to allow the opposing side to test your credibility or to show you documents or other evidence that may appear to contradict what you are trying to say.  It is often pointed and unpleasant which is how it is intended to be.  Every witness must be prepared to tell his or her story and to have that story challenged.

Once the other attorney has had his way with you, your attorney gets a second shot at asking you questions. That comes with a major limitation.  He or she must limit questions to subjects on which you were cross examined.  This “re-direct” examination is not an invitation to repeat the testimony you already gave.  It is to give your attorney a chance to clear up things where cross examination has created misunderstanding or ambiguity.  Take for example the question: “Did you ever discuss taking money from the retirement account with your spouse?”  You answered that you had not.  The fact is that you had not discussed the subject avoided the fact you had left the retirement withdrawal form on the table for your spouse to sign and that she had signed it. This testimony clears up the subject so the court has all the facts.  So your lawyer gets to ask you questions about this subject because it is ground not previously covered.

The other side can then “re-cross” you.  Again the limit is what you spoke about in re-direct.  With each stage the scope of the questioning is limited to the prior set of questions. Once the sponge called the witness has been thoroughly wrung out, it’s time for a new witness. The same rules apply for all witnesses.  It can be very annoying to be a party. Direct examination of a key witness (usually one of the two spouses) can go on for hours or even days.  That means you have to wait and wait for your lawyer to get a chance to cross examine your lying spouse.  It will be even longer until you get the chance to set the record straight with your own testimony.  Sorry. The rules are that the plaintiff gets to present his or her entire case before the defendant gets a chance to go forward. Some see that as a big disadvantage. All of that testimony goes unrebutted except for cross examination until it comes time for the defendant to present. But, remember, much as one party see advantage in being the first to present, the other party may see it as an advantage to be the last to present.

The defendant presents his or her case in the same way as the plaintiff. Direct examination of the witnesses followed by cross examination and then re-direct and re-cross.  Until the defense sponge is wrung dry just as the plaintiff’s was.

Is it then over?  Not quite. Suppose subjects come up in the defendant’s case that the plaintiff never discussed when he presented his case. The plaintiff is given a chance to rebut what the defendant presents.  Again, this is not a chance to rehash testimony already given. Rebuttal is limited to subjects that have not been fully explored.

Equitable distribution proceedings can be unwieldy because people own lots of assets and many of them (stock options, timeshares, nonqualified retirement plans etc) are complicated. All too often clients don’t really understand these assets as well as they should and that can make proceedings both long and frustrating. We have had witnesses with advanced education degrees confounded when asked what is reflected on their paystubs.  The key is to understand the process but, perhaps just as important, to understand the assets and the income that are unique to your case.

In these proceedings both sides are supposed to share their exhibits with the other side in advance of the trial.  It is usually productive to sit down with your attorneys in the days before complex hearings to review what you will have to tell the court and to try to anticipate how the other side will respond.