JOSHUA DEAR v. HARSHAL DEAR
No. 3023 EDA 2023
IN THE SUPERIOR COURT OF PENNSYLVANIA
AUGUST 13, 2024
STEVENS, P.J.E.
J-A12031-24; NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37; Appeal from the Order Entered October 31, 2023 In the Court of Common Pleas of Chester County Civil Division at No(s): 2022-05035-CU
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 13, 2024
Harshal Dear (“Mother“) has filed an appeal challenging five separate orders filed on October 31, 2023 with respect to the custody litigation between Mother and Joshua Dear (“Father“) (collectively, “Parents“) concerning their biological son, M.D., born in February 2020.1 We affirm.
* Former Justice specially assigned to the Superior Court.
The parties were married on April 12, 2018. They are the parents of one child, M.D., born [in February 2020]. The parties had decided to divorce, and Mother initiated a divorce action on January 11, 2020. . . .
[Thereafter,] the pаrties engaged in a “nesting” arrangement wherein M.D. remained in the [marital] home and the parties moved in and out on a week on/week off basis. Father filed for custody on March 23, 2022. The parties subsequently entered into a co-parenting and co-habitation agreement[, which was filed on June 2, 2022, and provided, inter alia, that Parents would have shared legal and physical custody of M.D. See Father‘s Custody Complaint, 7/8/22, at Exhibit A.] . . . At some point, Mother was no longer able to . . . honor the nesting agreement and returned to living in the marital residence on a full-time basis. Father also went back to living at the marital residence on a full-time basis. Father‘s custody action was dismissed after a conciliation as the parties were still residing under the same roof.
Mother obtained employment in the Plymouth Meeting area and informed Father that she was moving and taking M.D. Father did not pose an objection to Mother moving or to Mother taking M.D. on her custodial time; however, he never said that she could move and keep M.D. full-time, which is what she effectively did. She also changed M.D.‘s daycare to one closer to her home without Father‘s knowledge or consent. On July 8, 2022, Father filed the instant [custody] action.
The parties appeared for a custody conciliation on September 16, 2022[,] and an [interim custody] order was entered on September 20, 2022, granting the parties shared legal custody and Mother primary physical custody. . . . [On December 1, 2022, Mother filed a petition for contempt alleging Father had failed to abide by certain aspects of the interim custody order. On January 30,
2023, Father filed a petition for sanctions alleging that Mother had forged a document to falsely indicate that Father had been diagnosed with an autism spectrum disorder (“ASD“). A consolidated trial on the various pending petitions] was scheduled for March 14 and 15, 2023. At the conclusion of those two days . . ., due to the court‘s concern about Mother‘s behavior, a psychological evaluation was ordered for her. At Mother‘s request, the court ordered Father to undergo a psychological evaluation as well.2 The [c]ourt found Mother‘s behavior to be detrimental to M.D., as she continued her quest to have him labeled with a special need, be it a sensory issue or [ASD], and granted Father sole legal custody to stop the unrelenting health care appointments for M.D. and shared physical custody. . . .
Opinion and Order, 10/31/23, at 2-3. On July 7, 2023, Father filed a petition for contempt alleging Mother had violated portions of the interim custody order concerning M.D.‘s daycare. After the trial court received the respеctive psychological evaluations of Parents, it held additional hearings on the pending custody matters on August 21, 23, 25, and 30, 2023.
On October 31, 2023, the trial court filed five separate orders that: (1) awarded Father sole legal custody and primary physical custody of M.D.; (2) directed Mother to pay $5,000 in legal fees due to her “dilatory conduct” in connection with these custody proceedings; (3) denied Mother‘s December 1, 2022 petition for contempt; (4) granted Father‘s January 30, 2023 motion for sanctions and directed Mother to pay $1,200; and (5) granted Father‘s July 7,
On November 30, 2023, Mother filed a single, timely notice of appeal purporting to challenge all five orders and a concise statement of errors complained of on appeal pursuant to
Mother has raised the following issues for our consideration:
- Did the [c]ourt commit reversible error when [it was] provided with an ex parte letter from Father‘s counsel[,] which it accepted as fact and used as the bаsis to strip Mother‘s legal custodial rights, and reduce her physical custodial time regarding the 3[-]year-old child, without holding a hearing, and thus deprived her of her substantive and due process fundamental rights to a fair trial under the law, and further her substantial fundamental right to be a parent?
- Did the trial court err as a matter of law when it failed to conduct a trial and conclude а case within the time required by [
Pa.R.C.P. 1915.4 ], and specifically (c) regarding [t]rial[?]
Did the [c]ourt commit reversible error when it did not issue the [o]pinion in the time proscribed by Pa.R.C.P. 1915.4(d) , and further prejudiced Mother‘s rights, and specifically, the [c]ourt remained [u]nresponsive, after already not conducting the trial pursuant toPa.R.C.P. 1915.4(c) ?
Mother‘s Brief at 3-4 (issues reordered for ease of disposition; cleaned up).
Our relevant standard and scope of review is well-established:
Our standard of review over a custody order is for a gross abuse of discretion. Such an abuse of discretion will only be found if the trial court, in reaching its conclusion, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, biаs, or ill-will as shown by the evidence of record.
In reviewing a custody order, we must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the trial court who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court‘s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court‘s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light оf the sustainable findings of the trial court.
Rogowski v. Kirven, 291 A.3d 50, 60-61 (Pa.Super. 2023) (cleaned up).
As with all custody-related matters, this Court‘s “paramount concern is the best interest of the child involved.” Id. at 61 (internal citation and quotation omitted). Indeed, Pennsylvania law provides that the court is only empowered to change an existing custody order if the modification will “serve the best interest of the child.”
In order to evidence its consideration of these elements, custody courts must set forth a discussion of these best-interest factors “prior to the deadline by which a litigant must file a notice of appeal.” A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014). Instantly, the custody court provided a timely and complete assessment of the sixteen
We will begin our review by addressing Mother‘s claim concerning an allegedly ex parte communication sent by Father‘s counsel to the trial court. See Mother‘s Brief at 21 (“The trial court in this cаse relied upon an ex parte letter provided by [Father‘s] counsel which contained numerous allegations against Mother which the [c]ourt accepted whole-cloth.“). Mother‘s argument concerns a letter dated March 17, 2023, which was sent by Father‘s counsel, Elizabeth C. Early, Esquire, to the trial court via email and first-class mail. This document appears in the certified record as part of Mother‘s trial exhibits.
“An ex parte communication, by definition, involves the inclusion of one party in a consultation with a judge over the exclusion of another.” Commonwealth v. Gonzalez, 112 A.3d 1232, 1240 (Pa.Super. 2015). As a general matter of American jurisprudence, ex parte communications are heavily disfavored: “Courts around the country generally agree that material ex parte communications are improper in any case. They can extraneously influence decisions by introducing information outside the court record, and can do so unfairly because the communications are not shared with all participants.” Commonwealth v. McClure, 172 A.3d 668, 689 (Pa.Super. 2017). Accordingly, ex parte communications are “widely forbidden as a matter of procedure, due process, and ethics, as they deprive a litigant of the right to a fair trial before an impartial tribunal.” Id.
Our review indicates that Mother has misrepresented the nature of the at-issue letter. Specifically, the letter indicates that it was also contemporaneously transmitted to Attorney Rubin, i.e., Mother‘s attorney of record. See Mother‘s Exhibit 48. Indeed, at trial, Mother introduced the email in which Attorney Early sent this letter to Attorney Rubin, thereby verifying that he reсeived a copy of the letter. See Mother‘s Exhibit 51. Moreover, the
Based upon the foregoing, there is simply no support in the certifiеd record for the gravamen of Mother‘s argument. We find no merit in Mother‘s unsupported claim concerning the March 17, 2023 letter. Since no ex parte communication occurred, no relief is due. See, e.g., Gonzalez, 112 A.3d at 1240 (finding no merit to claim concerning an alleged ex parte communication when counsel for both parties were included in the challenged exchange).
We now turn to Mother‘s second and third claims for relief. While presented as separate issues, we will address these arguments cоllectively since they are substantially similar and pertain to the same procedural rule. Specifically, Mother asserts that the trial court‘s scheduling of the custody hearings and its determination violated the provisions of
Mother‘s arguments implicate
Rule 1915.4. Prompt Disposition of Custody Cases
. . . .
(c) Trial. Trials before a judge shall commence within 90 days of the date the scheduling order is entered. Trials and hearings shall be scheduled to be heard on consecutive days whenever possible but, if not on consecutive days, then the trial or hearing shall be concluded not later than 45 days from commencement.
(d) Prompt Decisions. The judge‘s decision shall be entered and filed within 15 days of the date upon which the trial is concluded unless, within that time, the court extends the date for such decision by order entered of record showing good cause for the extension. In no event shall an extension delay the entry of the court‘s decision more than 45 days after the conclusion of trial.
(e) Emergency or Special Relief. Nothing in this rule shall preclude a party from seeking, nor a court from ordering, emergency or interim special relief at any time after the commencement of the action.
There seems to be little question that the scheduling of the custody trial and the trial court‘s issuance of its final decision transgressed the time limits set forth above. Father filed a trial demand on November 9, 2022, and the trial court issued its scheduling order on December 1, 2022, which initially set trial for January 17, 2023. Attorney Rubin, however, suffered a “serious fall” and requested a continuance until February 16, 2023, which was granted. See Motion for Continuance, 1/17/23, at 1. Thereafter, Attorney Rubin requested a second continuance due to a “preplanned, prepaid vacation” until February 28, 2023, which was also granted. Motion for Continuance, 1/31/23, at 1. Finally, a change in the trial court‘s availability led to the third
Based upon this procedural review, we observe three violations of the time limits established by
Mother‘s arguments conсerning timeliness have overlooked the provisions of
Even assuming, arguendo, that there was no sufficient excuse for the trial court‘s failures to abide by the provisions of
[T]he Rule serves an instruction to the trial court to issue a decision in a custody matter within the prescribed time, and if a timely decision is not issued, it allows either party to petition the trial court, reminding it that its decision is overdue, and if an opinion is not then issued, to petition . . . for relief.
E.B. v. M.B., 304 A.3d 754, 3 WDA 2023, at *13 (Pa.Super. Aug. 14, 2023) (non-precedential decision). Thus, Mother is not entitled to relief.
Based upon the foregoing, we obsеrve no abuse of discretion or error of law in the trial court‘s custody orders. Thus, we affirm.
Orders affirmed.
Benjamin D. Kohler, Esq.
Prothonotary
Date: