Plowman v. Plowman

• Decision Date: 07 October 1991
• Citation: 409 Pa.Super. 143,597 A.2d 701
• Court: Pennsylvania Superior Court
• Parties: Diane PLOWMAN v. Bradley PLOWMAN, Appellant.

Page 701

597 A.2d 701

409 Pa.Super. 143

Diane PLOWMAN v. Bradley PLOWMAN, Appellant.

Superior Court of Pennsylvania.

Argued July 30, 1991.

Filed Oct. 7, 1991.

James Mahood, Pittsburgh, for appellant.

Robert J. Fall, Pittsburgh, for appellee.

Before McEWEN, OLSZEWSKI and CERCONE, JJ.

CERCONE, Judge:

This is an appeal from the final order of the Court of Common Pleas of Allegheny County granting legal and physical custody of a minor child to appellee/mother, subject to the partial custody of appellant/father. We affirm.

Appellant Bradley Plowman (hereinafter "father") and appellee Diane Plowman (hereinafter "mother") were married on May 28, 1983. During the course of the marriage, they had one child, Jason Plowman. On September 13, 1988, mother filed a complaint in divorce against father. In the complaint, she sought custody of Jason. On January 6, 1989, the parties agreed to a custody order which awarded primary physical custody to mother and granted partial physical custody to father.

Later that year, mother filed a petition for modification so that she could move to Gaithersburg, Maryland with Jason to accept employment as a medical assistant. In immediate response, father petitioned the court for a writ of ne exeat to prevent mother from moving to Maryland with the minor child. Judge Kaplan of the Allegheny County Court of Common Pleas Family Division entered an order which denied modification of the custody order as well as father's petition for writ of ne exeat, and sub silentio allowed mother to relocate to Maryland with Jason. He ordered an expedited custody conciliation hearing if the parties could not agree on a visitation schedule. Judge Kaplan also ordered the court appointed psychologist to consider the change in circumstances in conducting his evaluation of Jason. On June 23, 1989, father filed a petition for modification of custody. On June 27, 1989, the parties entered into an interim order of custody which provided that both parties maintain joint legal custody of Jason while allowing mother primary physical custody of the child in Gaithersburg. Mother and Jason moved to Maryland in July of 1989.

Between that time and the time of the full custody hearing in July, 1990, appellant filed three petitions for special relief alleging that mother failed to adhere to the interim custody order by prohibiting his access to Jason. On July 17, 1990, a full custody hearing was held before Judge Baer of the Allegheny County common pleas court family division. In his opinion, Judge Baer determined that mother displayed a natural ability to parent which made her the ideal primary caretaker for Jason. He found that upon her arrival in Maryland, she enrolled Jason in an excellent school, further indicating her dedication to the child and willingness to make sacrifices for the child. He also found that when mother vacated the marital residence, she prohibited father from seeing the child, with one exception, until establishment of a court order. Although mother abided by the order, she treated it mechanically, disregarding any flexibility to observe the child's best interests. Mother has generally not made the child available for father's telephone calls and would not allow the child to visit with father when she is in Pittsburgh unless required by court order.

The trial court also found that father is an understanding and thoughtful person who has a close and supportive relationship with his family. Judge Baer noted that although father had a previous bout of depression and related alcohol and drug problems, he overcame those problems which consequently had no bearing on the Court's decision. He found that when mother left the marital residence in September, 1988, father's relationship with Jason was cut off by mother's unilateral actions until January, 1989. Since then, father remained a part of the child's life and has done as well as could be expected to establish and maintain his role as a father under difficult circumstances.

Judge Baer gave credence to the opinion of the court appointed psychologist, Dr. Rosenblum, who found that the child's attachment to mother was stronger than the attachment to his father. Judge Baer concluded that mother has been generally uncooperative and difficult with father's partial custody and in this regard has not served the child's best interests. He stated, however, that one parent's ability to promote a continuing relationship with the other is only one factor to be considered, and in this case, was not a sufficient factor to justify a removal of the child from the mother and an award of primary custody to the father.

Judge Baer subsequently issued an order granting mother physical and legal custody of Jason subject to the partial custody of father. The order was drafted specifically to allow father a continuing relationship with the child father without any interference from mother. This timely appeal followed in which father raises three issues for our review:

1. Did the court err in permitting the mother to move out of the jurisdiction with the minor child without holding a hearing and making a determination of the child's best interests;

2. Did the court err in failing to adequately consider the mother's interference with the father's relationship with the child, her refusal to accommodate a relationship between the father and the child, and the father's parenting skills in making its determination;

3. Did the court err in excluding evidence offered by the father relating to the job opportunities and salaries for the mother in the Pittsburgh area and in finding that the mother had legally compelling reasons to move?

Before addressing these claims on their merits, however, we must determine whether father's first issue on appeal is properly before us. Mother has opposed our consideration of the order allowing her to relocate with Jason to Maryland on the grounds that father did not immediately appeal Judge Kaplan's order under the collateral order doctrine or by certification of the appeal, pursuant to 42 Pa.C.S.A. § 702(b).

The collateral order doctrine allows an appeal of an interlocutory order if certain conditions are met. As this court has set forth previously:

Under [Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ], an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Kronz v. Kronz, 393 Pa.Super. 227, 232, 574 A.2d 91, 93-94 (1990)(citation added). Under this test, we find that the order issued by Judge Kaplan in this case was not appealable. While father's right is extremely important and deserves consideration, we do not find that the order was separable from and collateral to the main cause of action. Here, father filed a petition to restrain mother from removing the child from the jurisdiction. The court denied this petition and allowed mother to relocate with the child. In effect, the issue of where the child should live is intertwined with the issue of which parent should maintain custody over the minor child.

We are also unpersuaded by mother's argument that father could have sought certification to appeal. Certification of an interlocutory appeal is not automatic. A party must obtain certification from the lower court and permission from this court before an appeal may be had. 42 Pa.C.S.A. § 702(b); Pa.R.A.P. Rule 1301, et seq., 42 Pa.C.S.A. Counsel for mother has not provided us with a rule of law, nor has our exhaustive research found one, which prohibits a party from appealing an interlocutory order where that party did not seek certification for interlocutory appeal based on that order. Having determined that the issue raised by father is properly before us, we turn to the merits of father's appeal.

In his first argument, father avers that Judge Kaplan erred in entering an order allowing mother to relocate with Jason to the Washington D.C. area without holding a hearing to consider the child's best interests. ¹ He alleges that because the full hearing on custody occurred one year later, the court based its decision on the new status quo created after the move. This, he contends, deprived him of due process.

Judge Baer found this issue moot because he held a subsequent evidentiary hearing on the issue of custody. Therefore, a review of Judge Kaplan's decision would have subverted the court's ultimate obligation to review the best interests of the child as of the time of the hearing under the facts as they then existed.

This court has previously held:

As a general rule an actual case or controversy must exist at all stages of the judicial process, and a case once "actual" may become moot because of a change in facts.... An exception is made, however, for cases in which the issues are capable of repetition but likely to evade review if the general rule on mootness is applied.... Thus, an action will not be found moot when the challenged action is in its duration too short to permit full litigation and there is a reasonable expectation that the same complaining party will be subject to the same action again.... Where the same party will not be subject to the harm again and the action is not a class action, still, the case will not be found moot if the issues capable of repetition but likely to evade review are "substantial questions," or "questions of public importance."

In re Estate of Dorone, 349 Pa.Super. 59, 65, 502 A.2d 1271, 1274 (1985) (citations omitted). Father alleges that he was denied procedural due process since he was not afforded a full evidentiary hearing before the court allowed Jason to relocate in Maryland with his mother. In a case such as this, we could never reach this issue because ap...