# W.S. and E.S. v. M.S. and J.S. > Superior Court of Pennsylvania · September 30, 2019 URL: https://www.frixlaw.com/law-library/cases/4442820 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** September 30, 2019 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4442820 ## How later opinions describe it (automated extraction) - recognizing that this Court may raise the issue of jurisdiction sua sponte - stating that “the appealability of an order goes directly to the jurisdiction of the Court asked to review the order.” (internal citation and quotation marks omitted) ## Opinion text J-A18041-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 W.S. AND E.S. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : M.S. AND J.S. : ___________________ : M.S. : : : v. : : : J.S. : : : APPEAL OF: J.S. : No. 245 WDA 2019 Appeal from the Order Entered January 11, 2019 in the Court of Common Pleas of Allegheny County Family Court at No(s): FD-17-009101 BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2019 J.S. appeals from the Order denying her Motion for Recusal in the underlying custody action. We dismiss the appeal. The trial court thoroughly set forth the relevant factual and procedural history underlying this appeal in its Opinion, which we incorporate as though fully set forth herein. See Trial Court Opinion, 4/2/19, at 1-11. On appeal, J.S. raises the following issues for our review: I. Did the trial court abuse its discretion when it failed to recuse itself where substantial doubt exists as to [the trial judge’s] ability to preside fairly and impartially? J-A18041-19 II. Did the trial court err and abuse its discretion when it denied [J.S.’s] Motion for Recusal without a hearing? Brief for Appellant at 5. Before we may entertain the merits of J.S.’s underlying claims, we must first determine whether this Court has jurisdiction to consider the appeal. See Murphy v. Int’l Druidic Soc’y, 152 A.3d 286, 289 (Pa. Super. 2016) (stating that “the appealability of an order goes directly to the jurisdiction of the Court asked to review the order.” (internal citation and quotation marks omitted)); see also Commonwealth v. Davis, 176 A.3d 869, 873 (Pa. Super. 2017) (recognizing that this Court may raise the issue of jurisdiction sua sponte). “As a general rule, only final orders are appealable, and final orders are defined as orders disposing of all claims and all parties.” Haviland v. Kline & Specter, P.C., 182 A.3d 488, 492 (Pa. Super. 2018) (internal citations and quotation marks omitted). However, an appeal may also be taken from an interlocutory order as of right, an interlocutory order by permission, or a collateral order. See Kensey v. Kensey, 877 A.2d 1284, 1287 (Pa. Super. 2005). In its Opinion, the trial court addressed whether the Order from which J.S. seeks to appeal falls within any of the above-mentioned categories of orders over which this Court has jurisdiction. See Trial Court Opinion, 4/2/19, at 11-17. We incorporate the trial court’s cogent analysis as though fully set forth herein. See id. The trial court emphasized the following: -2- J-A18041-19  [T]he [r]ecusal Order has not been labeled or deemed to be final or requiring an immediate appeal. Nor does it dispose of all claims and parties. … [N]one of the [c]ourt’s [O]rders have been intended to constitute a complete resolution of the custody claims pending between the parties;  The [r]ecusal Order does not fall within the scope of [interlocutory orders appealable as of right] … under [Pa.R.A.P.] 311…;  The [r]ecusal Order does not contain the requisite language … necessary for the Superior Court to invoke jurisdiction [for an interlocutory appeal by permission] pursuant to 42 Pa.C.S.[A.] § 702(b);  The Superior Court has held that the denial of a pre-trial motion to recuse does not fit into … [Pa.R.A.P.] 313 [(governing appealable collateral orders)]. Id. at 11-12, 16, 17 (internal citations and quotation marks omitted). Because this Court does not have jurisdiction to entertain an appeal from the trial court’s Order, we must dismiss the appeal. Appeal dismissed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/30/2019 -3- J-A18041-19 -4- Circulated 09/10/2019 11:50 AM IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION w, ., ' ' and E. No: FD 17�009101-002 SI Superior Court #245 WDA 2019 Plaintiffs, v. OPINION M s and BY: J( s Honorable Susan Evashavik DiLucente 704 City County Building Defendants. 414 Grant Street Pittsburgh, PA 15219 M S. Plaintiff, COPIES TO: v. Counsel for W, & E' ,S C. Kurt Mulzet, Esquire 411 71t1 Avenue, Suite 1200 Pittsburgh, PA 15219 Defendant. Counsel for M ·S Jennifer M. McEnroe, Esquire 630 Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 Counsel for J .: 5 ---· Richard Ducote, Esquire U) 4800 Liberty Avenue, Floor 2 ::�/:·r; :f=} · �;-� �:::·:. Pittsburgh, PA l 5224 0 I 1 l � .• ,·:·· : ..-:-· .. -· LU ! ... s : 1 - �->- •• •.', • ' Guardian Ad Litem: _.J Lea E. Anderson, Esquire 437 Grant Street LL 1400 Fick Building Pittsburgh, PA 15219 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY. PENNSYLVANIA FAMILY DIVISION FAMILY DIVISION W. S ,::md No: FD 17-009101-002 Er s Superior Court #245 WDA 20 l 9 Plaintiffs. v. ___ $ and s Defendants. {' ,1 Plaintiff, v. Jt 5' Defendant. OPINION Evashavlk DILucente, J. April 2, 2019 I. Background The parties to this action, Defendant J s ("Mother,,) and Plaintiff M S· ("Father 11), married in April 2003. The marriage produced two children,A.S. (DOB: 8/6/04) and T.S. (DOB:1/27/06) (collectively, the "Children"). On October 12, 2017, Father initiated the instant proceedings by filing a complaint for shared legal and primary custody of the Children. Mother filed a counter-complaint seeking the same relief, and Father subsequently filed for divorce. Shortly thereafter, the parties filed cross- petitions for protection from abuse, which ultimately resulted in the entry of a mutual no-contact order, with a provision for Father and Children to commence reunification counseling. 1 The parties proceeded through Generations and participated in a hearing to establish an interim physical custody schedule, wherein Father was granted supervised visitation. In addition and among other things, the Children's paternal grandparents ("Paternal Grandparents") filed a complaint for partial custody and received limited visitation, a guardian ad litem was appointed for the Children, and psychological evaluations were ordered. Numerous motions were presented and this Court conducted several conciliations regarding the status of the reunification counseling and Father's visitation, as the Children effectively refused to participate in both. Between the October 2017 initiation of this custody action and the entry of the October 26, 2018 Consent Order, which was the subject of Mother's companion appeal, Father and the Children's relationship had actually deteriorated. Issues were raised regarding the Children's emotional and mental health. Concerns arose over allegations that the Children had become alienated/estranged from Father and Paternal Grandparents. In an attempt to address the alienation/estrangement and Children's health concerns, Father presented an emergency ex parte petition regarding custody to this Court. Father averred that the Children's defiant behaviors were escalating, putting their safety at risk. Further, he alleged that Mother and the Children were a flight risk. In response, the Court entered an order on October 9, 2018 (though the order was inadvertently dated October 5, 2018) providing, inter alia, that • Father received sole legal custody of the Children, see Interim Order of Court Regarding Custody Dated 10/5/2018 (the "October 9 Order") at 11; • Father received sole physical custody of the Children, though they were required on an interim basis to reside with their paternal aunt and uncle in Texas pending further order of court, id. at 1 2; • the Children would have no contact with Mother pending further order of court, id. at � 7; and 2 • a hearing would occur on October 25, 2018, to review the interim order itself and to address Mother's no-contact order and any therapeutic interventions that might be needed for the Children, id. at ,i� 9� 10 & 20. The Children were subsequently transported to Texas where they began living with their paternal aunt and uncle and receiving therapeutic treatment.. Mother sought relief related to the October 9 Order in the Superior Court, which docketed that proceeding at 96 WDM 2018. By order entered on October 17, 2018, the Superior Court, among other things, stayed the October 9 Order, mandated that the Children be returned from Texas, required that the parties and this Court reestablish "the status quo" that existed prior to entry of the October 9 Order, and stated that this Court must hold a hearing within ten (10) days of October 16, 2018, with notice to all parties. The Children returned from Texas and to Mother. After receiving the Superior Court's order in 96 WDM 2018, this Court entered an order on October 18, 2018, expanding by one day the previously scheduled hearing related to the October 9 Order. Accordingly, the hearing originally set for October 25, 2018, was rescheduled for October 25 and 26, 2018. The parties - i.e., Mother, Father, and Paternal Grandparents - and their counsel appeared before this Court on October 25, 2018, for the bearing. Mother's counsel then made an oral motion for recusal (the "October Recusal Motion") based upon the October 9 Order, which the Superior Court addressed in 96 WDM 2018, and the proceedings leading to its entry. See October 25-26, 2018 Hearing Transcript ("HT") at 13-20. The Court denied the October Recusal Motion. Id. at 20. The hearing subsequently began. Among other individuals, the court-appointed expert in custody evaluation Dr. Neil D. Rosenblum ("Dr. Rosenblum") testified. He explained that he 3 performed a psychological evaluation for the Children's custody, and Dr. Rosenblum noted that in doing so: [t]he parties, the [M]other and the [Fjather, were initially interviewed by [Dr. Rosenblum's] associate ... on 6/25/18 and 6/29/18. [He then] did [his own] individual interviews with each parent. Father first, on 7/23/18 and 8/9/18. (Dr. Rosenblum] met with Mother and the [Children] ... on 8/21/18 and also interviewed each boy individually on that date. On 9/6/18, [he] did a follow-up interview with the [F]ather. On 9/10/18, [Dr. Rosenblum] met with the [P]atemal [G]randparents ..•. On 9/24/18, [he] did a follow-up interview with Mother .... On 10/1/18, [he] did a joint interview with Mother and Father. And lastly, on 10/4/18, [Dr. Rosenblum] met with the [Children] and Mother for a follow-up family interview, and then did a family interview with the [Children] Mother, and paternal grandmother .. HT at 25-26. Dr. Rosenblum also prepared a thirty-four (34) page, single-spaced Psychological Evaluation For Custody report (the "Expert Report"), which was admitted into evidence. See HT at 88. Dr. Rosenblum then testified to his findings. He explained that in his "35 years of doing these evaluationsl.]" he had never seen a worse case of alienation from a parent, here Father. See id. at 138 & 139 ("This is the most severe pattern of alienation of any case that I've worked. That is correct. And that will be 35 years of doing these evaluations."). He stressed that this Court respectfully submits, exist. 16 Finally, a litigant may take an appeal as of right from a collateral order. See Pa. R.A.P. 313(a}. "A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost," Pa. R.A.P. 313(b). The Superior Court has held that the denial of a "pre-trial motion to recuse does not fit into ... Rule] ] ... 313/' see Krieg, 743 A.2d at 511; accordingly, the Recusal Order is not collateral or, therefore, appealable at this time. Based on the foregoing, this Court respectfully submits that the Superior Court does not have jurisdiction over Mother's appeal of the Recusal Order. Said appeal does not involve a final order, interlocutory order appealable as of right or by permission, or collateral order. Mother's appeal should, therefore, be quashed. III. Mother's Allegations of Error Should the Superior Court disagree and not quash Mother's appeal, the Recusal Order should be affirmed. Mother raises two purported errors regarding said order. First, she alleges that "substantial doubt exists as to [the Court's] ability to preside fairly and impartially." Mother bases her allegation on the Court's entry and the circumstances surrounding the entry of the October 9 Order, the October 2018 Order, the October 31 Order, and the November 1 Order. In addition, Mother cites to the off-record December 4 Status Conference as well as her belief that the Court was required to be a necessary witness at a hearing on the Petition to Vacate and in Mother's criminal proceedings. Mother's position fails. 17 At the outset, and should the Superior Court deem the Recusal Order ripe for appeal, this Court notes that Mother's allegations about the Court's conduct and ability to preside fairly and impartially are belied by her own actions. Mother and her counsel - who were familiar with the appellate process and seeking relief through the same - never sought to appeal or challenge the Court's denial of the October Recusal Motion. They also never appealed or challenged the October 2018 Order prior to January 2019, the October 31 Order, the November 1 Order, or the November 2 Order. Indeed, they did not seek this Court's recusal after entry of the October 2018 Order through and including the December 4 Status Conference, despite much activity occurring in this case. Only when Mother sought to present her Petition to Vacate, did she re- allege a basis for recusal. Our Supreme Court has stated that "the law is clear[:] [i]n this Commonwealth, a party must seek recusal of a jurist at the earliest possible moment, i:e., when the party knows of the facts that form the basis for a motion to recuse." Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017). "If the party fails to present a motion to recuse at that time, then the party's recusal issue is time-barred and waived." Id. Mother's issue here is, thus, arguably waived and time-barred. As noted, she took no action with respect to the denial of the October Recusal Motion. She and/or her counsel attended and participated in the October 25 and 26, 2018 hearing, and the entry of the October 2018 Order. She did not object to or challenge this Court's impartiality during (i) the proceedings leading to the entry of the October 31 Order, the November 1 Order, and the November 2 Order or (ii) the holding of the December 4 Status Conference. Even if not waived, the Court notes that the law "presumes judges of this Commonwealth are honorable, fair and competent, and, when confronted with a recusal demand, have the ability 18 to determine whether they can rule impartially and without prejudice," Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa. Super. Ct. 2014) (quotation marks and citation omitted). Indeed: [ajs a general rule, a motion for recusal is initially directed to and decided by the jurist whose impartiality is being challenged. In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. Id. (citation omitted). The Court made the calculus required by the above and determined that it could and can assess the instant case "in an impartial manner, free of personal bias or interest in the outcome." Id. In addition, the Court concluded - and still believes - that its continued involvement in the case did not and does not create "an appearance of impropriety" and would not and will not "tend to undermine public confidence in the judiciary." Id. The Court thus properly denied Mother's request for recusal, That Mother desired to call the Court as a witness does not compel a contrary conclusion. Regarding the Court's potential testimony at a hearing on the Petition to Vacate, said hearing did not occur and for good reason: Mother premised such a petition upon a breach of contract theory, and such a theory did not justify granting her relief. Accordingly, no hearing on the Petition to Vacate was needed. Children "cannot be made the subject of a contract with the same force and effect as if [they] were ... mere chattel." In Com. ex. rel. Veihdeffer v. Veihdeffer, 344 A.2d 613, 614 (Pa. 19 Super. Ct. 1975). Indeed, "it is well settled that an agreement between ... parties as to custody is not controlling', on courts, which are instead required to take into account all relevant considerations. Id. Ultimately, any agreement between the parties that is - after all relevant considerations are reviewed - adopted by a court into an order acts to "bind the parties and governs further court action in the same manner as any other custody order issued by a court," Supko v. Monoskey, 461 A.2d 253, 256 (Pa. Super. Ct. 1983) (citation omitted) (original emphasis omitted) (new emphasis added). Accordingly, a consent custody order, like the October 2018 Order which was the subject of Mother's Petition to Vacate, must be treated like any other custody order, not a contract. Mother did not cite any case law to the contrary or that held consent custody orders constituted contracts and must be interpreted as such. See Petition To Vacate at fl 9-17; see also Sams v. Sams, 808 A.2d 206 (Pa. Super. Ct. 2002) (cited by Mother and using principles of contractual interpretation, in part, to analyze a child support agreement. not a custody order, and also noting that "[a] mother cannot, by contract, bargain away the right of her minor children to adequate support from the father, regardless of the validity of the agreement as between the parents themselves •.. [because i]n each case it is for the court to determine whether or not the terms of the agreement are reasonable, made without fraud or coercion, and have been carried out in good faith" (citation omitted)); Adams v. Adams, 848 A.2d 991 (Pa. Super. Ct. 2004) (cited by Mother and applying rules of contractual interpretation to a settlement agreement concerning marital property rights, not custody of Children); Bianchi v. Bianchi, 859 A.Zd 511 (Pa. Super. Ct. 2004) (cited by Mother and discussing principles of contractual interpretation in relation to a property settlement agreement between husband and wife, not a custody order); Yates v. Yates, 936 A.2d 1191 (Pa. Super. Ct. 2007) (cited by Mother and involving a custody 20 order, but not applying principles of contractual interpretation to the same and noting, among other things, that the trial "court ... [wa]s certainly correct in observing that where a custody agreement between the parties is incorporated into a court order that agreement becomes as binding upon the parties any other portion of the court's order"); Colonna v. Colonna, 791 A.2d 353 (Pa. Super. Ct. 2001) (cited by Mother and involving an antenuptial agreement); Kraisinger v. Kraisinger, 928 A.2d 333 (Pa. Super. Ct. 2007) (cited by Mother and pertaining to the child support portion of a marriage settlement agreement); Ferguson v. McKieman, 940 A.2d 1236 (Pa. Super. Ct. 2007) (cited by Mother and involving agreement as to child support between mother and sperm donor). This Court, therefore, did not hold a hearing to adjudicate Mother's Petition to Vacate. Said petition could not obtain relief through a breach of contract theory. No hearing would have changed that result. Accordingly, no hearing was held in the instant proceedings at which the Court was required to testify. Concerning any criminal trial/hearing involving Mother's conduct with respect to the instant custody proceedings, the Court notes that it has not been called to testify and, moreover, would not be presiding over such a matter in any event, making Rule 605 of the Pennsylvania Rules of Evidence - cited by Mother - inapplicable. See Pa.R.Evid.P. 605 ("The presiding judge may not testify as a witness at the trial or other proceeding." (emphasis added)). Second, Mother contends the Court erred by entering the Recusal Order without holding a hearing. Notably, Mother did not request a hearing in her motion for recusal. She also never objected to the lack of a hearing until she filed her statement pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Accordingly; Mother has not properly preserved this allegation of error for appellate review. See Pa.R.A.P. 302(a) ("[i]ssues not raised in the 21 .. lower court are waived and cannot be raised for the first time on appeal"); see also Beemac Trucking, LLC v. CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa. Super. Ct. 2016) ("[a]n issue raised for the first time in a concise statement is waived'). The Court submits, therefore, that based on the foregoing, if the appeal at 245 WDA 2019 is not quashed, the Recusal Order should be affirmed, Mother's arguments are either waived or lack merit. IV. Conclusion For the reasons set forth above, Mother's pending appeal should be quashed. In the event it is not, the Recusal Order should be affirmed. BY THE COURT: � i: ____________, J. V) Susan Evashavik DiLucente 22 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4442820. Public record. Not legal advice.