J.A.F. v. C.M.S.

164 A.3d 1277

J.A.F.

v.C.M.S., Appellant

No. 1176 MDA 2016

Superior Court of Pennsylvania.

Submitted November 21, 2016

Filed June 1, 2017

Justin P. Miller, Bellefonte, for appellant.

Laura K. Robbins, State College, for appellee.

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., AND STEVENS, P.J.E.^*

OPINION BY FORD ELLIOTT, P.J.E.:

C.M.S. ("Mother") appeals from the June 21, 2016 order entered in the Court of Common Pleas of Centre County that denied her petition for declaratory judgment and granted J.A.F. ("Father") standing to seek legal or physical custody of the minor child, O.P.S.¹ We quash.

The record reflects that Mother and M.H. began a same-sex romantic relationship in August 2013; that M.H. transitioned to male in March 2015; and that Mother and M.H. married on April 8, 2016. The record further reflects that in 2014, Mother and M.H. wanted to have a child but lacked the financial means to engage a sperm bank. As a result, the pair began to look for a donor "through friends at work." (Notes of testimony, 4/25/16 at 6.) When M.H. discussed the situation with some of those friends at work in the fall of 2014, Father overheard the conversation and later contacted M.H. via Facebook to volunteer to impregnate Mother. The record reflects that in November 2014, Mother, Father, and M.H. engaged in a series of text messages in which they planned the logistics of Father impregnating Mother and discussed the future roles that the parties would play in a resulting child's life in the event that Mother and Father conceived.

The record further reflects that Mother and Father had sexual intercourse at least once in November or December 2014, and as a result, Mother became pregnant with O.P.S. Mother gave birth to O.P.S. in August 2015. No dispute exists that Father is the biological father of O.P.S. The parties, however, dispute the role that Father was to play in the child's life. This dispute began during Mother's pregnancy and continued following the child's birth. As a result of this dispute, Mother has refused all of Father's requests to see O.P.S.

On November 9, 2015, Father filed a complaint for custody against Mother.² In response, Mother filed preliminary objections alleging that Father lacked standing to seek custody of the child under 23 Pa.C.S.A. § 5324 because, pursuant to the parties' text-message sperm-donor contract, he was merely a sperm donor and sperm donors do not have standing to seek custody under Section 5324.³ Both parties filed briefs and agreed to have the matter decided by the trial court on the basis of those briefs. On February 4, 2016, the trial court entered an order that granted Father provisional standing pending the development of further facts.

On March 9, 2016, Mother filed a petition for declaratory judgment requesting that the trial court "enter an order and decree declaring that a contract exists between the parties ... and enforce said contract with respect to [Father's] interest in and standing for any custody action." (Mother's petition for declaratory judgment, 3/9/16 at 3.) On April 25, 2016, the trial court conducted a hearing on that petition. Thereafter, both parties submitted briefs.

On June 21, 2016, the trial court filed an opinion and entered an order. In its opinion, the trial court set forth its reasoning for its conclusion that no sperm-donation contract existed between the parties and, consequently, deemed it unnecessary to determine the contract's enforceability. (Trial court opinion and order, 6/21/16 at 1–4.) The trial court further found that because Father is the biological father of O.P.S., Father has standing to seek custody of O.P.S. pursuant to 23 Pa.C.S.A. § 5324. (Id. at 4.) The trial court simultaneously entered an order that denied Mother's petition for declaratory judgment and granted Father standing to seek legal or physical custody of O.P.S. (Id. )

On June 23, 2016, Mother requested a continuance of the custody proceedings for the reason that "Mother will be filing a Notice of Appeal to the Superior Court of the court's ruling in its Motion for Declaratory Judgment." (Mother's continuance request and order of court, 6/24/16.⁴ ) On June 24, 2016, the trial court entered an order that rescheduled the custody hearing that was originally scheduled to take place on June 24, 2016 to March 13, 2017. (Id. )

On July 15, 2016, Mother filed a notice of appeal to this court and simultaneously filed a concise statement of errors complained of on appeal. On July 20, 2016, the trial court filed an "opinion in response to matters complained of on appeal" in which it incorporated its June 21, 2016 opinion and order. On August 15, 2016, this court ordered Mother to show cause as to why her appeal should not be quashed as having been taken from an unappealable interlocutory order. Mother filed a timely response. On August 31, 2016, this court discharged the show-cause order, and the issue of appealability is now before us. We note that both parties have addressed the appealability issue in their briefs.

Here, Mother contends that the order denying her petition for declaratory judgment constitutes "a final order on the question of whether there was a valid, enforceable contract, in the form of a sperm donation agreement, between the parties." (Mother's brief at 2.) Mother concedes that the trial court's determination that no sperm-donation contract exists determined Father's standing to seek custody, but she nevertheless argues that she appeals from the order denying her declaratory relief and determining that no sperm-donation contract exists, and not from the order overruling her preliminary objections wherein she challenged Father's standing based on her allegation that he is a contractual sperm donor. Mother has done nothing more than repackage her preliminary objections and assign them the new label of "petition for declaratory relief" in an effort to obtain appellate review of the trial court's standing determination in the underlying custody action. Precedent and our rules of court prohibit Mother from doing so.

Here, the order Mother seeks to appeal from does not qualify as a final order because (i) it was entered in an ongoing child custody proceeding; (ii) the trial court has not completed its hearings on the merits of the underlying custody dispute;⁵ and (iii) the order does not constitute a complete resolution of the custody claims pending between Mother and Father. Nevertheless, Mother attempts to obtain appellate review by claiming that the order appealed from denied her declaratory relief, and pursuant to the Declaratory Judgments Act, that declaration has the force and effect of a final judgment. (Mother's brief at 10–12.) In other words, Mother argues that because the order denied her declaratory relief, the Declaratory Judgments Act defines the order as a final order. Mother is mistaken.

Section 7532 of the Declaratory Judgments Act provides that:

Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

42 Pa.C.S.A. § 7532.

In her brief, Mother cites to Nationwide Mut. Ins. Co. v. Wickett, 563 Pa. 595, 763 A.2d 813 (2000), to support the proposition that an order in a declaratory judgment action is immediately appealable. In Wickett, our supreme court examined a trial court's order sustaining preliminary objections and dismissing some, but not all, of the defendants in an action. There, an insurance company, on its own behalf and on behalf of its insureds, filed preliminary objections in the underlying declaratory judgment actions that alleged that the Workers' Compensation Act provided the exclusive remedy for the employee injured in an automobile accident and the estate of the decedent who was killed in that accident so that those plaintiffs were precluded from recovering uninsured motorist benefits under the then-relevant Motor Vehicle Financial Responsibility Law. By granting the insurance company's preliminary objections, the trial court essentially concluded that neither the injured employee nor the decedent's estate could recover from the insurance company and, consequently, its insureds, which, therefore, declared the legal rights of those particular parties. Accordingly, our supreme court ruled that the order granting those preliminary objections was a final and immediately appealable order under the Declaratory Judgments Act, even though, following its entry, other claims and parties remained in the lawsuit. Id. at 817–818.

Since Wickett, our supreme court and this court have distinguished and limited the breadth of its holding. In Pa. Bankers Ass'n v . Pa. Dep't of Banking, 597 Pa. 1, 948 A.2d 790 (2008), our supreme court rejected plaintiff-banks' argument that an order sustaining preliminary objections on one of seven claims it brought against the defendant constituted a final order pursuant to the Declaratory Judgments Act because it foreclosed the banks from proceeding against the defendant on that particularly theory of recovery. In rejecting that argument, our supreme court distinguished the Bankers Ass'n order from the Wickett order. Unlike the Bankers Ass'n order, the Wickett order dismissed all claims against defendant insurance company and its insureds, which precluded plaintiffs from recovering against those defendants and, essentially, put plaintiffs out of court with respect to those particular defendants. Unlike the Wickett plaintiffs, the "plaintiff-banks [in Pa. Bankers Ass'n ] ‘might still be able to obtain the relief they are seeking [ ] based on one of their alternative theories pending before the [trial court].’ " Id. at 474. Therefore, the ...