S.E.D. v. G.D.M.
53 EDA 2016
| Pa. Super. Ct. | Nov 18, 2016Background
- Parents had a prior custody order (2009) giving Mother primary physical custody, Father partial physical custody, and shared legal custody of their son (born 2005).
- Father filed a petition to modify custody on April 4, 2014; multiple hearings occurred in 2014–2015 and interim orders were entered expanding Mother's partial custody to every other weekend.
- At the December 7, 2015 final hearing, the court entered an order awarding Father primary physical and sole legal custody; Mother received limited alternating-weekend and Monday-night visitation.
- Mother, who was pro se at the hearing, consented on the record (reluctantly) to the custody schedule offered by Father’s counsel.
- Mother appealed, arguing the trial court erred by transferring custody without addressing the 16 statutory custody factors (23 Pa.C.S. § 5328(a)); trial court did not file a written opinion explaining factor-by-factor analysis.
- The Superior Court treated the December 7, 2015 order as final and appealable and reviewed for abuse of discretion.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether trial court erred by awarding primary physical and sole legal custody without addressing the 16 factors in 23 Pa.C.S. § 5328(a) | Trial court abused discretion and committed error of law by failing to analyze each statutory custody factor on the record or in writing | The order was entered with Mother’s express consent on the record, so separate § 5328(a) analysis was not required | Court held no error: consented agreement obviated need for explicit factor-by-factor analysis |
| Whether December 7, 2015 custody order was appealable | (implicit) Order should be appealable because it changes custody | Order was final in effect despite label “interim” | Court found the order final and appealable because hearings were complete and no further proceedings were scheduled |
Key Cases Cited
- Gunn v. Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505 (Pa. Super. 2009) (courts must determine sua sponte whether an order is appealable)
- Kulp v. Hrivnak, 765 A.2d 796 (Pa. Super. 2000) (same on appealability jurisdiction)
- Stewart v. Foxworth, 65 A.3d 468 (Pa. Super. 2013) (final-order rule: appeal lies only from a final order unless rule or statute permits)
- G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (custody order is final and appealable when hearings are complete and the order resolves the custody claims)
- V.B. v. J.E.B., 55 A.3d 1193 (Pa. Super. 2012) (standard of review in custody appeals — broad scope, abuse of discretion)
- S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014) (trial courts generally must analyze § 5328(a) factors when awarding custody)