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.

 

The Pennsylvania Superior Court recently rendered an Opinion in the case of Ferko-Fox v. Fox, 2013 Pa.Super 1888. This Opinion is important from the standpoint that it affirms the requirement listed under 23 Pa.C.S.A. §6107(b)(1) that a Protections From Abuse petition requires an ex parte hearing to determine if there is immediate and present danger requiring immediate, temporary relief.

In the Fox case, the wife obtained a temporary Protection From Abuse evicting the husband from the marital residence, as well as prohibiting any communication between the two of them. The husband challenged the temporary PFA on the basis that § 6107(b) requires that the trial court conduct an ex parte hearing for the purpose of protecting the respondent’s due process rights. Specifically, the court found that when the PFA Act permits trial courts to temporarily suspend a “respondent’s rights and liberties based upon the petitioner’s demonstration of an immediate and present danger of abuse at an ex parte proceeding.”  As husband argues, what this essentially means is that a basic review of the verified Petition is insufficient to grant temporary relief without an ex parte hearing being done by the Court. 

 

The ex parte hearing is important in the PFA process because it gives the trial court the opportunity to examine the petitioner in person and under oath; this face-to-face examination of the individual allows the Court to explore facts and circumstances beyond that of the contents of the Petition. The petitioner’s motive may be examined and discerned by an in-person examination and questioning by a Judge. It would also give the presiding Judge the opportunity to examine physical evidence (or the absence thereof) of violence such as, “scratches, wounds and bruises.”

 

Consequently, the Superior Court found that Lancaster County’s informal practice of an in-camera review of the Petition prior to the entry of a temporary order was insufficient to protect the respondent and to ensure justice in the application of the act. The Superior Court’s Opinion conclusively holds that “absent an exigent circumstance that prevents a petitioner’s appearance, due process mandates a trial court convene an ex parte hearing prior to entering a temporary PFA pursuant to §6107(b)”. 

 

The practical application of this holding is that each and every Protection From Abuse requesting temporary relief that is filed in Pennsylvania will now have an initial ex parte hearing on the record before a determination as to whether a Temporary Order will be entered. This will certainly increase the work load of court reporters since the Protection From Abuse Act requires entry of a final Order within ten (10) days of the filing of the Petition (except where a continuance is granted) and thus requiring significant turnaround of the transcript of the hearing for use at trial. 

From a practice perspective, counsel for PFA Petitioners and Respondents will need to be vigilant in obtaining the record from the Court and it is fair to assume that pro se litigants will not have the knowledge or wherewithal to either know about the necessity of having a transcript, nor how to go about obtaining it. Like any change to a standard practice, there will be some adjustment to this new procedure, but I would assume that the courts, court reporters, and counsel will develop as efficient a process as possible to address the added requirement of an ex parte hearing and transcript. An unintended consequence of this rule may also be that temporary orders will be much more judiciously entered in some Counties than perhaps they were before. The requirement of an immediate and present danger of abuse will be much more closely scrutinized in situations in which the facts are much less clear than in more obvious situations.