J.M.S. v. J.M.S.
368 WDA 2016
| Pa. Super. Ct. | Jan 12, 2017Background
- In June 2012 two ICU nurses in Morgantown, WV, witnessed Father allegedly rubbing his then-seven‑year‑old daughter's vagina over her clothing while she sat on his lap; Morgantown police and child services reported the incident to Washington County, PA.
- The trial court initially entered a sua sponte PFA order in 2012; the Superior Court vacated that order on procedural grounds in April 2013.
- Mother filed a new PFA petition on behalf of the child in May 2013; the court entered temporary PFA relief and multiple hearings and continuances followed over the next three years. Father received supervised visitation throughout.
- The two out‑of‑state nurse witnesses testified at the 2012 hearing but did not appear at later hearings; Mother sought admission of their prior testimony under Pa.R.E. 804 and demonstrated attempts to subpoena them.
- The trial court admitted the prior testimony, conducted further proceedings, and on February 11, 2016 entered a final PFA order restricting Father from unsupervised contact with the child.
- Father appealed raising recusal, admissibility of prior testimony under Rule 804, delay in decision, sufficiency of evidence, and reliance on additional factual assertions (lack of responsibility/history of abuse).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial judge should have recused | Mother: judge was impartial; no recusal argued. | Father: prior sua sponte PFA and securing subpoenas created appearance of bias, so judge should recuse. | Denied — Father failed to show specific bias; routine adverse rulings insufficient. |
| Admission of prior out‑of‑state witness testimony under Pa.R.E. 804 | Mother: prior testimony admissible; witnesses unavailable after reasonable subpoena attempts. | Father: Mother did not prove sufficient efforts to procure witnesses; testimony should be excluded. | Admitted — court found witnesses unavailable and that prior testimony was from identical issues and subject to cross‑examination. |
| Delay in issuing final PFA (decision months after hearing) | Mother: delay resulted from agreed continuances and waiver of immediate decision for post‑trial briefs. | Father: Rule 1038 requires decision within seven days; delay unlawful. | No error — Father waived immediate decision; case was protracted and Rule 1038 exception applies. |
| Sufficiency of evidence supporting PFA (reliance on prior transcript) | Mother: nurses’ prior eyewitness testimony established indecent assault by preponderance. | Father: transcript alone insufficient to prove abuse. | Affirmed — prior testimony was sufficient to find abuse (indecent assault) by preponderance. |
| Court’s mention of Father’s lack of responsibility and history of abuse | Mother: such factors relevant to visitation and disposition. | Father: statements unsupported and improper bases for PFA. | No reversible error — court’s finding of abuse rested on the assault; additional comments were dicta and considered only for visitation/disposition. |
Key Cases Cited
- In re A.D., 93 A.3d 888 (Pa. Super. 2014) (standard for reviewing denial of recusal)
- Ware v. U.S. Fidelity & Guar. Co., 577 A.2d 902 (Pa. Super. 1990) (mere unfavorable rulings do not establish judicial bias)
- Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009) (admissibility of evidence reviewed for abuse of discretion)
- Consolidated Rail Corp. v. Delaware River Port Authority, 880 A.2d 628 (Pa. Super. 2005) (proponent must show efforts to procure witness for Rule 804 unavailability)
- Mescanti v. Mescanti, 956 A.2d 1017 (Pa. Super. 2008) (standard for reviewing sufficiency in PFA proceedings)
- Commonwealth v. Provenzano, 50 A.3d 148 (Pa. Super. 2012) (skin‑to‑skin contact not required for indecent assault)
- Thompson v. Thompson, 963 A.2d 474 (Pa. Super. 2008) (indecent assault qualifies as abuse under PFA Act)