G.B. v. M.M.B.

• Decision Date: 25 January 1996
• Citation: 448 Pa.Super. 133,670 A.2d 714
• Parties: G.B. v. M.M.B., Appellant, T.B. and A.B., Minor Children.
• Court: Pennsylvania Superior Court

Page 714

670 A.2d 714

448 Pa.Super. 133

G.B. v. M.M.B., Appellant, T.B. and A.B., Minor Children.

Superior Court of Pennsylvania.

Argued Sept. 11, 1995.

Filed Jan. 25, 1996.

[448 Pa.Super. 135] Robert J. Fields, Waymart, for appellant.

Kimberly D. Borland, Wilkes-Barre, for appellee.

Brian J. Cali, Dunmore, for the minor children, participating parties.

Before ROWLEY, President Judge, ^* and CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.

BECK, Judge:

We granted en banc review in this case in order to clarify when orders relating to child custody will be deemed final and therefore ripe for appeal. We hold that a custody order will be considered final and appealable only after the trial court has completed its hearings on the merits and the resultant order resolves the pending custody claims between the parties.

In the instant case we conclude that the order on appeal is interlocutory. The order allowed appellee, the children's father, periods of partial custody of his two sons pending completion of hearings on the issues of primary and partial custody. Since the court contemplated an additional hearing on the ultimate issues in the case, the appeal is premature. On September 12, 1995, we entered an order without opinion quashing the appeal. This opinion will explain the reasons for our order.

FACTUAL AND PROCEDURAL HISTORY

This is a dispute regarding the custody of two minor children, T.B., born December 6, 1977, ¹ and A.B., born November 30, 1983. The parents of the children, M.M.B. ("mother") and G.B. ("father"), separated in May, 1994.

The numerous petitions filed by the parties to this action demonstrate a custody war fought on the battlefield of the court. In this court's view, the parties and the children would be better served by resolving this family matter without judicial intervention.

On May 17, 1994, father filed a complaint in divorce including a claim for partial custody and visitation. On May 31, 1994, father filed a Petition for a Temporary Order of Partial Custody and Visitation pursuant to Pa.R.C.P. 1910.15. On July 5, 1994, he filed a Supplemental Petition for Interim Order of Partial Custody and Visitation averring that he had been precluded from any contact with the two children. On July 20, 1994, a hearing was held on father's partial custody petition. The issue of partial custody was deferred until psychological evaluations of both parents and the children were concluded.

On November 8, 1994, father filed a Special Petition seeking an interim order to permit him partial custody of the children over the upcoming holidays. On November 15 On January 24, 1995, father again filed a Petition for Temporary Partial Custody and Visitation. A hearing was held on January 27, 1995, on this petition as well as the plans for counseling and partial custody submitted by the parties pursuant to the court's November 18 order. At the conclusion of the hearing, the court ordered that contact between father and the children be limited to counseling sessions for the time being, but that by March 18, 1995, father should have partial custody from 10 a.m. Saturday until 7:00 p.m. Sunday. The court also scheduled a hearing on the claims for "permanent" custody and partial custody and visitation which were initially asserted in the father's divorce complaint. ²

1994, a hearing on this petition was held. The court entered an order directing the parties to submit plans for participation in counseling and for implementation of interim partial custody, but did not explicitly decide whether father would be awarded temporary partial custody over the upcoming holidays. The court stated that its goal was to implement temporary partial custody for father prior to February 1, 1995.

On March 17, 1995, the court commenced the custody hearing based on the divorce complaint. The court was unable to hear all witnesses on the issue of "permanent" custody and partial custody and therefore scheduled a further hearing for May 8, 1995. At the conclusion of the day's proceedings, however, the court entered an order modifying its previous order for overnight partial custody. The revised order limited the father's partial custody to five hours on Saturday at a resort near Mother's home. ³

Pursuant to the March 17 order, the father visited with his sons. Shortly thereafter, on March 22, 1995, counsel for the children filed an Emergency Petition for Suspension of Visitation, asserting that the visit had been unsuccessful and that further visits would not be in the boys' best interests. On March 24, 1995, father's counsel transmitted a Motion for Entry of Partial Custody to the court via telefacsimile. That motion was filed with the trial court Prothonotary on March 27, 1995.

On March 24, 1995, the trial court entered another order for partial custody. Referring to its March 17 order, but without mentioning either the Emergency Petition filed by counsel for the children or father's Motion for Entry of Partial Custody, the court's order granted father partial custody and visitation every Saturday from 10:00 a.m. to 6:00 p.m. beginning April 1, 1995 and continuing until further order of court. ⁴ It is this On March 30, 1995, mother filed a Petition to Suspend Partial Custody and Visitation which was scheduled for hearing on May 1, 1995. On April 6, 1995, mother filed a Notice of Appeal on behalf of herself and the two boys from the court's March 24 order. An oral motion for stay of the March 24 order pending appeal was denied on that same date. ⁶

[448 Pa.Super. 139] March 24 order that is challenged in the instant appeal. ⁵

On April 18, 1995, father filed with this court an application to quash mother's appeal, asserting that the trial court's March 24 order was not a final order for partial custody and was merely one in a series of interim orders directing contact between father and the boys until further hearings enabled the court to make a final determination of the parties' primary and partial custody rights. We denied this application without prejudice to renew the jurisdictional argument before the court en banc. Both parties have briefed and argued to us the issue of the finality of the trial court's March 24 order.

DISCUSSION

Few legal principles are as well settled as that an appeal properly lies only from a final order unless otherwise permitted by rule or statute. See, e.g., Fried v. Fried, 509 Pa. 89, 501 A.2d 211, 213 (1985); Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985). Pennsylvania Rule of Appellate Procedure 341 defines a final order as:

any order that:

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

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

(3) any order entered as a final order pursuant to subsection (c) of this rule [allowing the trial court, in multi-claim or multi-party actions, to enter a final order as to one or more but fewer than all of the claims or parties upon an express finding that an immediate appeal would facilitate resolution of the entire case]. ⁷

Pa.R.A.P. 341(b), 42 Pa.C.S. This rule, as amended by the Pennsylvania Supreme Court in 1992, has made it clear that an order is not final and appealable merely because it decides one issue of importance to the parties. Rather, for an order to be final and ripe for appeal, it must resolve all pending issues and constitute a complete disposition of all claims raised by all parties.

The matter before us, like many custody actions, was initiated by inclusion of a count for custody in father's complaint in divorce. A strict reading of Rule 341 might therefore suggest that the trial court's determination of custody will not be final until the divorce action and all other ancillary claims have been resolved. However, the language of Rule 341 does not explicitly address the rule's applicability to custody matters, which have traditionally been subject to procedures differing from those in other civil actions. Moreover, the official note accompanying the 1992 revision of Rule 341 does not list orders for custody among the types of matters affected by adoption of the rule. Note, Pa.R.A.P. 341, 42 Pa.C.S. Considering the policies underlying custody determinations, it is unlikely that the Supreme Court in promulgating revised Rule 341 intended to change existing law regarding the appealability of orders in custody matters. We conclude that the strict language of the rule does not apply to bar immediate review of a trial court's final custody determination. ⁸

In support of our conclusion, we note that a custody action may not only be brought as a count in a divorce action, it may also be initiated in a separate complaint independent of a divorce action. See 23 Pa.C.S. § 3104; Pa.R.C.P. 1915.3. An independently asserted claim for custody would become final after the trial court decided the ultimate issue relating to custody. The principles established to define finality for custody orders must be the same whether the action is brought as a count in a divorce complaint or in a separate custody complaint. Therefore, Rule 341 cannot appropriately be applied to a custody action brought as a count within the wider context of a divorce action.

There are important policy reasons to analyze the finality of custody orders differently from other civil court orders. Child custody orders are treated differently because they have significant, important and immediate impact upon the welfare of children. The state has a singular interest in families, and especially in children. Therefore, custody procedures have attempted to be especially responsive to the needs of families and children. A principal part of that responsiveness has been the prompt and comprehensive review of custody determinations. ⁹

In order to arrive at a workable standard for appealability, we review the case law as well as the underlying principles of finality in child custody matters. In doing so, we study...