Gibson, J. v. McKinney, D.
Gibson, J. v. McKinney, D. No. 2447 EDA 2016
| Pa. Super. Ct. | Apr 27, 2017Background
- Mother and Father are parents of a child born in 2005; they agreed to a custody order on June 19, 2006 (shared legal, Mother primary physical, Father partial physical on alternating weekends).
- Multiple later disputes: Father filed (and later withdrew) an emergency custody modification in 2011; high-conflict parental relationship noted by the custody master.
- In January 2015 Mother obtained an agreed order imposing conditions on Father’s custody, including four joint counseling sessions.
- Both parties subsequently filed contempt petitions alleging incidents where the child refused Father’s custodial time; Father’s 2015 contempt petition was denied.
- Mother filed a 2015 contempt petition (denying Father’s willingness to pick up/keep the child); after a hearing on July 11, 2016 the trial court denied Mother’s contempt petition and entered an order July 12, 2016.
- On appeal Mother filed a pro se Pa.R.A.P. 1925(b) statement despite being represented by counsel; the Superior Court held the pro se filing a nullity, found the issues waived, and affirmed the trial court.
Issues
| Issue | McKinney's Argument | Gibson's Argument | Held |
|---|---|---|---|
| Whether Father was in contempt of the June 19, 2006 custody order | Father violated custody multiple times and must be held in contempt | Father refused to force the child to visit when the child objected; he did not willfully violate the order | Waived for appellate review due to defective Pa.R.A.P. 1925(b) filing; alternatively, no relief warranted on the merits and trial court decision affirmed |
| Whether Father’s testimony converted the contempt hearing into a custody modification hearing | Father’s testimony improperly expanded the proceeding’s scope, requiring reversal | Father’s testimony was factual response; no prejudicial change in hearing nature | Not preserved in appellate statement; issue waived; no relief granted |
| Whether the trial court abused discretion in dismissing the contempt petition without a contempt finding | Court should have found contempt and awarded make-up custodial days | Court properly exercised discretion based on record and prior rulings | Waived; even on merits, affirmance of denial of contempt |
| Preservation of issues given pro se Pa.R.A.P. 1925(b) filing while represented | Pro se statement preserved issues for appeal | Pro se filing is a legal nullity when counsel represents the appellant | Held against McKinney: hybrid representation impermissible; pro se 1925(b) statement was nullity and issues deemed waived |
Key Cases Cited
- Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (hybrid representation is not permitted; pro se filings by represented parties are nullities)
- Linde v. Linde Enterprises, Inc., 118 A.3d 422 (Pa. Super. 2015) (issues not raised in Pa.R.A.P. 1925(b) statement are waived)
- Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (waiver principle when issues not preserved in concise statement)
- Commonwealth v. Williams, 151 A.3d 621 (Pa. Super. 2016) (limited circumstances where hybrid filings may be accepted do not apply broadly)
- In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009) (discussing limited appellate leniency in children’s fast track appeals)