TB v. LRM

• Citation: 2000 Pa. Super. 168,753 A.2d 873
• Parties: T.B., Appellee, v. L.R.M., Appellant.
• Decision Date: 05 June 2000
• Court: Superior Court of Pennsylvania

753 A.2d 873

2000 Pa. Super. 168

T.B., Appellee, v. L.R.M., Appellant.

Superior Court of Pennsylvania.

Argued September 8, 1999.

Filed June 5, 2000.

Nicholas Banda, Johnstown, for appellant.

Walter A. Wisz, Ebensburg, for appellee.

Before McEWEN, President Judge, and DEL SOLE, KELLY, POPOVICH, JOHNSON, FORD ELLIOTT, EAKIN, JOYCE, and STEVENS, JJ.

KELLY, J.:

¶ 1 In this appeal, Appellant asks us to determine whether the trial court erred when it granted Appellee limited visitation of Appellant's child, A.M. Specifically, Appellant challenges the propriety of the trial court's determination that Appellee has standing to seek visitation, its denial of Appellant's untimely request for a hearing before a trial judge, and its decision that limited visitation with Appellee is in the child's best interest. We hold that under the facts and circumstances of this case, the issue of standing was correctly decided. We further hold that the trial court properly denied Appellant's untimely request for a hearing before a trial judge. Finally, we hold, the record does not provide an adequate basis for review of the trial court's decision that limited visitation is in the child's best interest. Accordingly, we vacate the visitation order and remand for further proceedings in accordance with this opinion.

¶ 2 The relevant facts and procedural history of this appeal are as follows. Appellant and Appellee are openly acknowledged lesbians, who first met in the early 1980's. In the late 1980's they began an exclusive relationship, and eventually moved in together in 1990. Soon thereafter, the parties jointly purchased a home, and shared finances and expenses, paid through a joint bank account.

¶ 3 The parties also agreed to have a child. Following their decision in early 1992, Appellant researched the details of the desired pregnancy. The parties decided that Appellant would be impregnated. Appellant chose the person who would donate his sperm for the purpose of her artificial insemination. Together, the parties planned for Appellant's pregnancy.

¶ 4 Appellant became pregnant through artificial insemination at the end of 1992.¹ After Appellant became pregnant, Appellee helped to take care of Appellant and attended the Lamaze classes as Appellant's birthing coach. Appellee was the designated co-parent for purposes of being present in the operating room when Appellant underwent delivery by caesarian section. A.M. was born on August 27, 1993. The parties did not have any formal document representing a co-parenting agreement because Appellant had assured Appellee that none was needed. After A.M.'s birth, Appellant, Appellee and A.M. lived together in their home. Appellant also executed a will, which named Appellee as guardian of A.M.²

¶ 5 The facts as found by the hearing officer also show that the parties shared the rights and responsibilities of child rearing. Appellee participated in the day-to-day care of A.M. for the first three years of her life and was active, yet deferential to Appellant, in making parental decisions. During those years, Appellee provided for the child's care at home whenever Appellee was not working during the day. On days when Appellee worked a day shift, she was the one to take the child to daycare. If A.M. were sick, then Appellee took off from work to care for A.M. The parties also shared the responsibility for the child's medical checkups and other appointments. Appellee undertook exclusive responsibility for A.M. when Appellant was away from home.

¶ 6 Throughout the three years that the parties lived together after A.M. was born, Appellee acted as a co-parent. A.M. knew Appellee as "Aunt [T.]," referred to Appellee's sisters as "aunt," and received Christmas and birthday gifts from Appellee's family. In addition, Appellant, Appellee and A.M. together took camping or other day trips and family vacations together.

¶ 7 In May 1996, Appellant and Appellee sold their home and together purchased and moved into a new house, as an accommodation to changes in Appellant's employment. Shortly after they moved into their new home, Appellee left the home to have an affair. Although Appellee soon returned to the residence during the summer of 1996, the parties' relationship was severely strained. Appellant ultimately asked Appellee to move out of their home by August 1996, which is when the parties finally separated. After the separation, Appellee visited once with A.M., on September 4, 1996. After that time, Appellant refused all of Appellee's visitation requests, telephone calls, and gifts for the child.

¶ 8 On October 3, 1996, Appellee promptly filed a complaint for shared legal custody and partial physical custody for purposes of visitation.³ Appellant's counsel accepted service of Appellee's complaint on December 6, 1996. Appellant filed preliminary objections to Appellee's complaint on December 9, 1996, asserting that Appellee lacked standing to pursue any claim with respect to the child.

¶ 9 The court scheduled a pre-hearing conference for January 30, 1997. The parties with counsel attended the conference. Following the conference, the hearing officer made certain recommendations to the court. On February 21, 1997, the court entered a consent order, wherein the parties agreed that the hearing officer, Theresa Homady, Esquire, would take testimony and make findings of fact and recommendations relative to Appellee's standing and her request for partial custody/visitation with the minor child. Thus, the parties agreed that the hearing would proceed before the designated hearing officer on Appellee's claim for partial custody/visitation. The parties also reserved their rights to file exceptions and submit the hearing officer's recommendations to the trial court for review. The parties also agreed that, following the hearing before the hearing officer, the trial court would rule on Appellant's preliminary objections on the standing issue and, if necessary, review and rule on the ultimate determination of partial custody/visitation. Neither party reserved any right to a de novo hearing before a trial judge.

¶ 10 The evidentiary hearing proceeded before the designated hearing officer on March 11, 1997. The parties presented six hours of testimonial evidence regarding their past and present lifestyles and their involvement with each other and with the child. Both parties presented testimony from other witnesses to support their respective positions regarding Appellee's standing and claim for visitation. Following the evidentiary hearing, the hearing officer found that Appellee had standing to seek custody/visitation by virtue of her in loco parentis status with respect to the child. The hearing officer also recommended that Appellee have partial custody for purposes of limited visitation. Finally, the hearing officer recommended that Appellant retain sole legal custody and primary physical custody of the child.

¶ 11 The hearing officer filed her final report on April 16, 1997. Appellant timely filed her exceptions to the hearing officer's report, to which Appellee filed a response. Appellee filed no exceptions. Following briefing, the parties argued Appellant's exceptions before the Honorable F. Joseph Leahey on June 16, 1997.

¶ 12 On June 20, 1997, Appellant made her first request for a hearing before a trial judge, pursuant to Pa.R.C.P.1915.4-1(b), on the issues of Appellee's standing and claim for partial custody/visitation. In her belated bid for a hearing, Appellant asserted that Rule 1915.4-1 compelled a hearing before a judge, where "standing" constitutes a complex issue of law and/or fact, which should be heard by an experienced trial judge, who is better equipped than the hearing officer to evaluate the live testimony of the witnesses. Appellant's motion additionally restated her exceptions to the hearing officer's report and recommendations, which had already been briefed and argued before the trial court. Principally, Appellant claimed, the record was insufficient to support the hearing officer's recommendation that visitation with Appellee was in A.M.'s best interest and a hearing was therefore necessary to supplement the record.

¶ 13 By opinion and order dated June 30, 1997, the trial court denied Appellant's request for a hearing before the judge, reasoning that Appellant had failed to request a hearing "promptly after the filing of the complaint." (Trial Court Opinion and Order, dated June 30, 1997; R.R. at 69a-71a). Appellant later filed supplemental exceptions to the hearing officer's report and Appellee responded.

¶ 14 On August 26, 1997, the trial court entered its order,⁴ adopting the hearing officer's recommendations. The court granted Appellant sole legal and primary physical custody of A.M. The court granted Appellee partial custody only for limited visitation. The court slightly modified the hearing officer's visitation recommendation by postponing the beginning date for visitation, adding specific visitation time periods, and placing certain restrictions on visitation. In its supporting opinion, the trial court adopted the hearing officer's findings of fact. The court concluded that the hearing officer had properly relied on J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314 (1996) regarding the issue of Appellee's standing.

¶ 15 Sometime in early September, the parties attempted to implement the trial court's limited visitation schedule. Meanwhile, Appellant timely filed an appeal on September 24, 1997. On the same day, Appellant filed a petition with the trial court for a stay pending appeal.

¶ 16 The hearing on Appellant's petition for supersedeas pending appeal proceeded on October 16, 1997. The hearing began with an opening statement by Appellant's counsel, which outlined for the court the four-step analysis of Dincer v. Dincer⁵ pertinent to Appellant's petition. In presenting opening statements to the court, Appellant's counsel candidly admitted that it would be...