Connelly v. Connelly

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered September 16, 2020 In the Court of Common Pleas of Chester County Civil Division at No(s): No. 2020-02419-CU.

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.^[*]

MEMORANDUM

OLSON, J.:

Appellant, Thomas P. Connelly, Jr. ("Father"), appeals pro se from an order entered on September 16, 2020 pursuant to the Child Custody Act ("the Act"), 23 Pa.C.S.A. §§ 5321-5340, which purported to modify an existing custody order with respect to his daughter, O.C. ("Child"), born in February 2016. Upon review, we quash this appeal because the underlying custody orders entered in this case were not final and appealable. Accordingly, we remand for further proceedings.

Our review is limited to the procedural history of this case, together with the allegations set forth within the pleadings filed by the parties. The certified record does not include transcripts of proceedings before the trial court or hearing officers, nor any opinion reporting the factual findings or custody-related conclusions of law drawn therefrom.

Larissa C. Connelly ("Mother") filed a complaint in custody on March 5, 2020 seeking primary physical custody, ^[2] and her counsel appeared of record on that date. Father proceeded pro se. Mother's complaint did not include any factual assertions. Rather, it baldly stated "[t]he best interest and permanent welfare of the child will be served by granting Mother and Father

shared legal custody^[3] with Mother [having] primary physical custody and Father having partial physical custody."^[4] Complaint, 3/5/20, at 2 (unpaginated). The parties attended a mediation session on April 9, 2020 but did not enter into a written custody agreement. After rescheduling a conciliation conference from April 16, 2020 to July 2, 2020, Father failed to attend the July 2, 2020 conciliation conference before Hearing Officer Tracy L. Christman.^[5], ^[6] Immediately after the conciliation conference, Hearing Officer Christman submitted a recommended custody order to the trial court, ^[7] which

the trial court signed on July 7, 2020, ^[8] entered on the docket on July 8, 2020, and sent to the parties on July 10, 2020 (the "July order").^[9] Pursuant to this order, Mother and Father shared legal custody, Mother received primary physical custody, and Father retained partial physical custody with special instructions. Trial Court Order, 7/10/20, at 2. Father exercised partial physical custody with Child every other weekend from Friday at 6:30 p.m. until Sunday at 5:00 p.m. and every Wednesday from 4:30 p.m. to 6:30 p.m. Id. The trial court required Father to submit to testing with Soberlink^[10] during custodial periods and to a psychological evaluation within 30 days of the July order. Id. The order provided that Child shall have "reasonable uninterrupted telephone contact with the non-custodial party." Id. at 3.

Within the July order, the custody conciliator noted that the order was recommended by the conciliator but not agreed to by the parties.^[11] Id. Moreover, the July order included within its terms a "Littman"^[12] notice which stated:

The Custody Conciliator has determined that this recommendation results in a change in primary custody that is not agreed upon by the parties. The Conciliator has advised the parties that the objecting party shall file any request for a stay of the entry of the recommended order within five [] days of the conciliation conference and, if no stay is filed within five [] days, the recommended order shall be entered. The parties are further notified that if no demand for trial is filed within [90] days following the conciliation conference, the recommended order shall become a final order of court. The objecting party shall

follow the procedure set forth in Chester County Rule 1915.5.B(f)(2) with regard to seeking a stay or custody trial.

Id. at 2 (emphasis added).^[13] Beside the signatures of the Custody Conciliator and the trial court judge, the July order included the following notice:

NOTICE: UNLESS A DEMAND FOR TRIAL HAS BEEN FILED, THIS ORDER SHALL BECOME A FINAL ORDER OF THE COURT WITHIN 90 DAYS OF THE MOST RECENT CONCILIATION CONFERENCE.

Id. at 3.^[14] Pursuant to the terms appearing in the notice, the July order would become final 90 days after the July 2, 2020 conciliation conference - i.e.,

September 30, 2020 - "unless a demand for trial has been filed." See Trial Court Order, 7/10/20, at 3.

The July order established the custody arrangement between Mother and Father and, as such, purported to resolve the custody dispute raised in Mother's complaint filed on March 5, 2020. The July order did not, however, include any recitation of factual findings or assessment of the 16 custody factors outlined in 23 Pa.C.S.A. § 5328(a).^[15] The trial court docket reflects that, on September 28, 2020, Father filed a timely demand for trial on issues raised at the July 2, 2020 conciliation conference and addressed in the Court July order. Despite Father's demand, the trial court entered the July order as final on September 30, 2020.

In the meantime, on August 31, 2020, Mother filed a petition for special relief^[16] and requested an expedited hearing. Within her petition, Mother asked

the trial court to modify Father's partial physical custody time to shorter periods of supervised physical custody.^[17] To support her petition for special relief, Mother cited several allegations concerning events occurring prior to the entry of the original custody order, including her personal fear of Father and Father's consumption of alcohol.^[18] See Petition for Special Relief, 8/31/20.

Mother and Father attended a conciliation conference before Hearing Officer Richard E. Lombardi on September 9, 2020.^[19] Both parties were represented by counsel at the conference as Father's counsel, Paul S. Peters III, entered his appearance on September 9, 2020.^[20] On the same day, Father's counsel filed a response to Mother's petition for special relief contesting most of her allegations. Specifically, Father (1) contested the relevance of Mother's assertions; (2) demanded strict proof thereof; (3) asserted that Mother misrepresented facts within her petition; (4) challenged the propriety of the allegations within Mother's petition; and (5) averred that none of Father's actions impacted his "parenting time" with Child. Father's Response in Opposition to Mother's Petition for Special Relief, 9/9/20.

Immediately after the conference hearing, Hearing Officer Lombardi submitted a recommended custody order to the trial court, ^[21] which the trial

court signed on September 11, ^[22] entered on the docket on September 14, 2020, and sent to the parties on September 16, 2020 (the "September order").^[23]

Pursuant to the September order, entitled "Interim Custody Order," the July order remained in effect with several modifications (adopted in the September order) that restricted Father's custodial time.^[24] Trial Court Order, 9/16/20. Father's custodial time was limited to supervised physical custody every other Saturday from 10:00 a.m. to 6:30 p.m. and, if Father notifies Mother at least 72 hours in advance, on Wednesdays from 4:30 p.m. to 6:30 p.m. Id. Father bore the costs of supervision, and if the parties could not agree on a supervisor, Father was required to use Child First Family Services. Id. The September order also directed the parties to establish accounts at

www.OurFamilyWizard.com^[25] for a one-year subscription and thereafter solely communicate through that website except in emergency matters "regarding the child that must be acted upon in less than 24 hours." Id. The September order restricted Father's "reasonable telephone contact" with Child to "one completed telephone call per day not to exceed fifteen minutes in length." Id. Lastly, the September order prohibited Father from consuming alcoholic beverages during or immediately prior to exercising his supervised physical custody. Id.

Unlike the July order, the September order did not include a "Littman" notice or state whether the parties mutually agreed to its provisions. See Trial Court Order, 7/10/20, at 2 and 3. The September order included the following stamped notice:

Notice: Unless a demand for trial has been filed, this order shall become a final order of the court within 180 days of the filing of the complaint or petition for modification or 90 days of the most recent conciliation conference, whichever is earlier.

Trial Court Order, 9/16/20.^[26] The plain language of the notice stamped on the September order made clear that, unless a demand for trial was filed, the September order would become final at the earliest of (1) 180 days from the filing of the March 3, 2020 complaint - i.e., September 1, 2020; (2) 180 days from the filing of the petition for modification - no petition for modification was filed; or (3) 90 days from the September 9, 2020 conciliation conference - i.e., December 8, 2020.^[27] Id. (emphasis added).

The September order modified the custody arrangement between Mother and Father and, as such, purportedly resolved the custody issues raised in Mother's petition for special relief filed on August 31, 2020. The

order limiting Father's custodial time to shorter periods of supervised physical custody and implemented further restrictions on Father's custodial award. As with the July order, the September order did not include factual findings or address the mandatory Section 5328(a) custody factors before stating these custody modifications.

Father's counsel filed a demand for trial on September 28, 2020. The filing expressly...