J.T.O. & S.O. v. C.H.
1854 MDA 2016
| Pa. Super. Ct. | Oct 6, 2017Background
- Child born 2009; parents were Father (C.H.) and Mother (M.H.). Mother died in November 2013; Child continued to live with Father.
- Maternal grandparents (J.T.O. and S.O.) filed a custody complaint October 14, 2014 seeking shared legal and physical custody and alleging longstanding relationship and Father’s refusal to permit contact; they did not allege Father was unfit.
- Trial court entered an interim custody order (Dec. 3, 2014) awarding sole legal and physical custody to Father and permitting grandparent visitation; Father moved for reconsideration and emergency relief in June 2015, which was denied.
- On the day set for trial (Oct. 18, 2016), Father moved to dismiss claiming constitutional defects in the Domestic Relations Code (standing and anti-relocation provisions); parties instead entered a stipulation adopting an amended custody order effective pending Father’s intended appeal.
- Trial court certified the constitutional questions for interlocutory appeal under 42 Pa.C.S. § 702(b); Father did not file the required petition for permission to appeal under Pa.R.A.P. 1311(b).
- Superior Court concluded the Oct. 18, 2016 order was interlocutory (nonfinal) and not appealable under Kassam; because Father failed to pursue a permissive appeal, the appeal was quashed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Oct. 18, 2016 custody order is a final, appealable order under Pa.R.A.P. 341 | Father: order disposed of all claims/all parties and thus is final | Court/Grandparents: order was entered pending further proceedings and appealed issues were interlocutory | Held: Not final or appealable — interlocutory; quash appeal |
| Whether a custody order entered without merits hearing is final | Father: relied on finality under Rule 341(b)(1) | Court: custody order requires merits hearing considering § 5328 factors to be final | Held: Order lacked merits hearing; not final |
| Whether court’s certification under 42 Pa.C.S. § 702(b) cured interlocutory status | Father: certification allows appeal of controlling constitutional questions | Court/Grandparents: certification requires filing petition under Pa.R.A.P. 1311(b) to perfect appeal | Held: Father failed to file petition for permission to appeal; appeal not perfected |
| Whether procedural default (late response to show-cause) affected appealability | Father: responded to show-cause asserting finality (response filed 3 days late) | Court: addressed appealability on merits despite late filing; ultimate quash based on interlocutory nature and failure to perfect appeal | Held: Appeal quashed on substantive grounds; failure to perfect permissive appeal also fatal |
Key Cases Cited
- Kassam v. Kassam, 811 A.2d 1023 (Pa. Super. 2002) (custody order is final only after merits hearing and intended as complete resolution)
- G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (discusses uniqueness and temporary nature of custody orders and test for finality)
- Kensey v. Kensey, 877 A.2d 1284 (Pa. Super. 2005) (permissive appeal from certified interlocutory order requires petition for permission to appeal)