S.S. v. T.J.

• Decision Date: 10 June 2019
• Docket Number: No. 653 WDA 2018,653 WDA 2018
• Citation: 212 A.3d 1026
• Parties: S.S., Appellant v. T.J.
• Court: Pennsylvania Superior Court

212 A.3d 1026

S.S., Appellant

v.T.J.

No. 653 WDA 2018

Superior Court of Pennsylvania.

Argued December 4, 2018

Filed June 10, 2019

S.S., appellant, pro se.

Thomas F. Putinsky, Pittsburgh, for appellee.

BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER,^* J.

OPINION BY SHOGAN, J.:

Father, S.S., appeals pro se from the order denying his petition for modification of custody with regard to his two daughters, C.M.S., born in June of 2006, and C.B.S., born in April of 2009 (collectively "Children"), who are now living with their Mother, T.J., in South Carolina. We affirm.

The trial court set forth the background of this case as follows:

[Mother and Father married in 2001.] The parties have been divorced since 2010. [Initially, the parties shared custody of Children, with Mother having primary physical custody.] They initially struggled to make their way as a separated family, resulting in Mother filing a number of Protection from Abuse petitions after custody exchanges became confrontational. [Mother sought to relocate with Children to South Carolina with her fiancé.] By the time of the hearing on Mother's Relocation petition in September of 2017, however, the parties had gotten past the emotions which had led to physical altercations and, instead, were focused on what was best for the children.

At the time of the relocation hearing, [C]hildren were in Mother's primary care. Father exercised weekend custody and played a major role in the lives of his children. Mother proposed relocation in order to follow her fiancé who had been transferred to South Carolina and to advance her career as a real estate agent. After [the] hearing, [the trial court] determined that relocation with Mother was in [C]hildren's best interest, with liberal contact and custody being provided for Father. [The trial court's September 27], 2017 Order awarded Mother primary physical custody during the school year, with Father exercising summer custody as well as long weekends and holidays.

The Order further provided [C]hildren daily phone, text, or Skype contact with the non-custodial parent, which contact was to be encouraged and not interfered with by the parent exercising custody. The Order required the parents to use common sense when scheduling calls and provided that the calls should not be "excessively frequent or too long in duration that they disrupt the child's schedule." [Father did not take an appeal from the September 27, 2017 order.]

In late November of 2017, Father initiated an investigation by the South Carolina [D]epartment of Social Services, alleging the girls were being neglected and mistreated. Father alleged he learned of the abuse from his children. ( [N.T., 4/25/18, at] 4). The accusations were determined to be unfounded and the case was closed. ( [Id. at] 4[8]-49).

In his Petition for Modification of Custody [filed on December 7, 2017], Father alleged that Mother was improperly limiting his phone contact with the girls to 30 minutes in retaliation for the child abuse investigation. ( [Id. at] 5). He also alleged that the girls are fearful, are being beaten by Mother, and are intimidated and threatened by her fiancé. ( [Id. at] 5-9).

At the hearing on this matter, Father appeared pro se and Mother was represented by counsel. Mother and the girls testified by phone from South Carolina. [On April 26, 2018, the trial court] entered an Order denying Father's modification petition. [The trial court] found [its] analysis of both the relocation factors of 23 Pa.C.S.A. 5337(h) and the custody factors of 23 Pa.C.S.A. 5328 only several months before this hearing were still applicable. [The trial court] did not find Mother to be in contempt, but directed that telephone calls could exceed 30 minutes "using common sense."

[The trial court] also directed Mother to enroll both girls in counseling to help them cope with their issues regarding separation from the Father.

Trial Court Opinion, 7/2/18, at 2-3. Father filed this timely pro se appeal. Both Father and the trial court complied with Pa.R.A.P. 1925.

Father presents the following issues for our review:

A. WHETHER THE LOWER COURT ABUSED ITS DISCRETION AND COMMITTED AN ERROR OF LAW IN WEIGHING THE FACTORS BY GRANTING THE MOTHER PRIMARY CUSTODY OF THE CHILDREN?

B. WHETHER THE LOWER COURT PROPERLY APPLIED THE FACTORS IN ANALYZING THE BEST INTERESTS OF THE CHILDREN?

C. WHETHER THE LOWER COURT DEVIATED FROM APPLICABLE STANDARDS IN ESTABLISHING A SCHEDULE OF WHEN THE FATHER WOULD BE ABLE TO HAVE [PHYSICAL] CUSTODY OF THE CHILDREN INDIVIDUALLY AND TOGETHER?

Father's Brief at 5.

Before addressing the merits of Father's issues, we must determine whether those issues are properly before us. The trial court has asserted that Father's Pa.R.A.P. 1925(b) statement is not concise and required the trial court to guess at the issues being presented. We agree.

A concise statement of errors complained of on appeal must be specific enough for the trial court to identify and address the issues the appellant wishes to raise on appeal. Commonwealth v. Reeves , 907 A.2d 1, 2 (Pa. Super. 2006) (quoting Lineberger v. Wyeth , 894 A.2d 141, 148 (Pa. Super. 2006) ). Pennsylvania Rule of Appellate Procedure 1925 provides that a Rule 1925(b) statement "shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge." Pa.R.A.P. 1925(b)(4)(ii). "Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived." Pa.R.A.P. 1925(b)(4)(vii). See also Commonwealth v. Lopata , 754 A.2d 685, 689 (Pa. Super. 2000) (stating that "[a] claim which has not been raised before the trial court cannot be raised for the first time on appeal").

This Court has considered the question of what constitutes a sufficient Pa.R.A.P. 1925(b) statement on numerous occasions and has established that "[an] appellant's concise statement must properly specify the error to be addressed on appeal." Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa. Super. 2011). "[T]he Rule 1925(b) statement must be specific enough for the trial court to identify and address the issue an appellant wishes to raise on appeal." Id. (brackets, internal quotation marks, and citation omitted).

The compulsory requirement of adhering to Pa.R.A.P. 1925 is captured in the following excerpt from Kanter v. Epstein , 866 A.2d 394 (Pa. Super. 2004) :

In Commonwealth v. Lord , 553 Pa. 415, 719 A.2d 306 (Pa. 1999), the Pennsylvania Supreme Court specifically held that "from this date forward, in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to [Pennsylvania Rule of Appellate Procedure] 1925." Lord , 719 A.2d at 309. "Any issues not raised in a 1925(b) statement will be deemed waived." Id. This Court explained in Riley v. Foley , 783 A.2d 807, 813 (Pa. Super. 2001), that Rule 1925 is a crucial component of the appellate process because it allows the trial court to identify and focus on those issues the parties plan to raise on appeal. This Court has further explained that "a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no Concise Statement at all." Commonwealth v. Dowling , 778 A.2d 683, 686-[6]87 (Pa. Super. 2001). "Even if the trial court correctly guesses the issues Appellants raise[ ] on appeal and writes an opinion pursuant to that supposition the issues [are] still waived." Commonwealth v. Heggins , 809 A.2d 908, 911 (Pa. Super. 2002).

Kanter , 866 A.2d at 400.

Our law further makes clear that compliance with Pa.R.A.P. 1925(b) is not simply a matter of filing any statement. Rather, the statement must be concise and sufficiently specific and coherent as to allow the trial court to understand the allegation of error and offer a rebuttal. These requirements are evident in the following language from Dowling :

When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.

... While Lord and its progeny have generally involved situations where an appellant completely fails to mention an issue in his Concise Statement, for the reasons set forth above we conclude that Lord should also apply to Concise Statements which are so vague as to prevent the court from identifying the issue to be raised on appeal. In the instant case, [a]ppellant's Concise Statement was not specific enough for the trial court to identify and address the issue [a]ppellant wished to raise on appeal. As such, the court did not address it. Because [a]ppellant's vague Concise Statement has hampered appellate review, it is waived.

Dowling , 778 A.2d at 686-687 (citations and quotation marks omitted).

Moreover, as we stated in Reeves :

There is a common sense obligation to give the trial court notice as to what the trial court should address in its Rule 1925(a) opinion. While there is a middle ground that [an appellant] must travel to avoid having a Rule 1925(b) statement so vague that the trial judge cannot ascertain what issues should be discussed in the Rule 1925(a) opinion or so verbose and lengthy that it frustrates the ability of the trial judge to hone in on the issues actually being presented to the appellate court, see Kanter v. Epstein , 866 A.2d 394 (Pa. Super. 2004), that is not an onerous burden to place on [an appellant]. It only requires using a little common sense.

Reeves , 907 A.2d at 2-3.

In addition, we note that, "[a]lthough this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant." Commonwealth v. Adams , 882 A.2d 496, 498 (...