Opinion
J-S47002-15 No. 777 MDA 2015
08-05-2015
W.P., Appellee v. J.P., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered February 19, 2015, in the Court of Common Pleas of Schuylkill County, Civil Division, at No(s): S-1735-2011 BEFORE: ALLEN, OTT, and STRASSBURGER, JJ. MEMORANDUM BY ALLEN, J.:
Retired Senior Judge specially assigned to the Superior Court.
J.P. ("Father") appeals pro se from the interlocutory order of February 19, 2015, which denied and dismissed his motion for recusal of the Honorable Charles M. Miller, who has presided over the underlying child custody matter since it commenced in August of 2011, and the order of March 4, 2015, which denied and dismissed Father's exceptions. Upon careful review, we affirm.
The record reveals that Father is an attorney, and has represented himself throughout the underlying custody matter.
An order denying recusal is an interlocutory order. However, on March 9, 2015, the trial court amended the February 19, 2015 order to state that it involves a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal will materially advance the ultimate termination of the matter. See 42 Pa.C.S.A. § 702(b); Pa.R.A.P. 1311. On April 1, 2015, Father filed a petition for permission to appeal, which a separate motions panel of this Court granted, directing that "[t]his matter shall proceed before this court as an appeal from the orders of February 19, 2015 and March 4, 2015." Order, 5/6/15.
On January 30, 2015, Father filed the subject motion for recusal, alleging that "throughout the years of litigation in the instant custody matter, the Honorable . . . [Charles M.] Miller has shown bias and impropriety in his statements directed at Father during the course of hearings and in his drafted opinions and orders." Motion for Recusal, 1/30/15, at ¶ 21.
By way of background, the initial custody order, docketed on August 27, 2012, granted W.P. ("Mother") primary physical and legal custody and Father partial physical custody, with respect to the parties' sons, G.P., born in December of 2002, and T.P., born in February of 2006. The trial court amended the August 27, 2012 initial custody order with respect to the provision involving the vacation periods of the parties by order dated November 2, 2012. Father filed a notice of appeal from the November 2, 2012 order, and this Court vacated the order, resulting in the August 27, 2012 initial custody order remaining in effect. See W.P. v. J.P., 2087 MDA 2012 (filed June 5, 2013) (unpublished memorandum).
On February 8, 2013, Mother filed a petition to relocate with the children to Ormond Beach, Florida. Father objected to the relocation and filed a petition for sole legal and primary physical custody of the children.
Prior to the hearing occurring on the relocation petition, Mother filed an emergency petition seeking suspension of Father's partial custody based on allegations by the children that Father had inappropriately touched them. Prior panels of this Court explained, in part:
The parties agree[d] to suspend Father's custodial periods until the investigation of the allegations, undertaken by the Office of Children and Youth Services ("CYS") concluded, and agreed to the appointment of a guardian ad litem for the children. CYS ultimately concluded that the allegations were unfounded.1
1 The parties' older child, G.P., made the initial allegations. T.P. later allegedly made similar accusations. Although all claims of abuse were determined to be unfounded, the relationship between Father and sons has deteriorated to such an extent that the trial court ordered them to participate in reunification therapy.
W.P. v. J.P., 689 MDA 2014 (filed October 20, 2014) (unpublished memorandum at 2). Father filed a notice of appeal from the July 8, 2013 order, which this Court affirmed. See W.P. v. J.P., 1220 & 1317 MDA 2013 (filed January 16, 2014) (unpublished memorandum).
W.P. v. J.P., 1955 MDA 2013 (filed April 25, 2014) (unpublished memorandum at 2).
On July 8, 2013, the trial court awarded Mother sole legal custody and primary physical custody of G.P. and T.P. and permitted Mother to relocate with children to Ormond [Beach], Florida. The court granted Father periods of partial physical custody but paragraph four of the order provided that Father could not exercise custody of the children "until the reconciliation counselor, Amy Riegel, determines that the children were emotionally ready for such extended visits." Trial Court Order, 7/8/13, at 3.
On September 3, 2013, Father filed a petition for emergency relief and contempt, which the trial court denied by order dated October 18, 2013. Father filed a notice of appeal, and this Court affirmed in part, and reversed in part. See W.P. v. J.P., 1955 MDA 2013 (filed April 25, 2014) (unpublished memorandum). Specifically, we concluded that the trial court abused its discretion in denying Father's allegation of contempt against Mother because "[a]t the contempt hearing, Mother admitted that G.P. has not completed reunification therapy and testified that G.P. terminated the reunification therapy." Id. at 7 (citation to record omitted) (emphasis in original). We concluded, "Mother's testimony established that she has knowingly and wrongfully violated the July 8, 2013 order, and therefore establishes her contempt." Id. at 8. We thus reversed the trial court's determination regarding Father's allegation of contempt. On remand, we directed the court "to fashion a suitable remedy. In so doing, we assume that the trial court is aware that time is of the essence and that Father cannot be made to wait any longer for the reunification therapy that it has already determined to be in the children's best interests." Id. at 8-9.
The record reveals that "Father completed reunification counseling with T.P. prior to the children's relocation to Florida during August 2013. . . ." W.P. v. J.P., 689 MDA 2014 (filed October 20, 2014) (unpublished memorandum at 3).
On January 17, 2014, while his appeal from the October 18, 2013 order was still pending, Father filed a second petition for contempt and emergency relief. A prior panel of this Court explained that the petition asserted, in part:
that Mother was in contempt of the July 8, 2013 custody order based on her interference with both [Father's] court-ordered custodial rights to T.P. during Christmas 2013, and his noncustodial contact with G.P. during that period. As it relates to his request for special relief, Father sought reimbursement of the $806.32 that he paid Mother for one-half of the children's airfare for Christmas custody. Significantly, Father did not request that the trial court revisit paragraph four of the custody arrangement or reiterate his prior grounds for contempt, which was that Mother interfered with his ability to facilitate reunification counseling with [G.]P. . . .W.P. v. J.P., 689 MDA 2014 (filed October 20, 2014) (unpublished memorandum at 3-4) (footnotes 2-3 omitted). An evidentiary hearing on Father's second petition for contempt occurred on March 18, 2014. By order dated April 3, 2014:
the court denied Father's allegations of contempt for Mother's obstinate interference with his custody rights under the July 8, 2013 order. Without specifically addressing Mother's interference with Father's court-ordered custodial period with T.P. during Christmas, which was uncontested, the trial court found that Mother should be "recognized, not chastised for her efforts," i.e., demanding that Father visit both children in Florida under her conditions in lieu of exercising his custodial rights to his son who completed counseling approximately five months earlier. Thus, it effectively suspended Father's right to exercise physical custody of T.P., even though that matter was never before it.Id. at 4-5 (emphasis in original).
Additionally, the trial court concluded that counseling could not continue in Pennsylvania with Ms. Riegel due in part to Mother's intimidation of Ms. Riegel and the counselor's alleged comments to G.P. suggesting that he recant the unfounded allegations of abuse that he leveled against Father. The trial court opined that the relationship between the children and Ms. Riegel "has deteriorated and is compromised." Trial Court Opinion, 4/3/13,
at 3. The court also noted that Ms. Riegel was not licensed to practice in Florida and implied that it was contrary to the children's interest to travel to Pennsylvania for counseling. Accordingly, the court replaced Ms. Riegel with Joellen Rogers, Ph.D., the children's current therapist who has had two sessions each with the children "to counsel the[m] . . . and help them acclimate to their current environment." N.T., 3/18/14, 140; Trial Court Opinion, 4/3/13, at 4.
Two days before this Court filed its disposition in Father's appeal from the October 18, 2013 order, Father filed a notice of appeal from the April 3, 2014 order. Upon review of that order, this Court concluded that, "Dr. Rogers is an inappropriate candidate for reunification counseling and that the order appointing her to that position is procedurally defective and must be reversed as violating Father's procedural due process . . . ." W.P. v. J.P., 689 MDA 2014 (filed October 20, 2014 at 3-5) (unpublished memorandum at 30). We directed, in part, that the court "appoint a counselor consistent with the July 8, 2013 custody order. Specifically, the trial court is instructed to appoint an impartial mental health professional to perform reunification counseling between Father and both of his sons in Pennsylvania. The counseling will occur every other weekend." Id. at 30-31 (emphasis in original). Further, we ordered the trial court "to grant Father generous periods of supervised partial physical custody before and after the bi-weekly counseling sessions in Pennsylvania." Id. at 31.
Pursuant to this Court's order, by order dated October 29, 2014, the trial court appointed Jodi Merrill, M.A., as the reunification counselor. Approximately three months later, on January 30, 2015, Father filed a petition for legal and primary physical custody and contempt, requesting modification of the July 8, 2013 custody order. In addition, Father requested a finding of contempt against Mother for allegedly, inter alia, "persistently interfer[ing] and tr[ying] to influence the course of the reunification counseling between Father and the [c]hildren with Ms. Merrill." Petition, 1/30/15, at ¶ 93. Mother filed preliminary objections, in which she asserted a lack of jurisdiction "claiming the custody modification should be held in Florida where the children and Mother have allegedly resided since August, 2013." Trial Court Opinion, 3/9/15, at 1.
On January 30, 2015, Father filed the subject motion for recusal, which the trial court denied by order dated February 19, 2015. On February 26, 2015, Father filed exceptions, which the trial court denied by order dated March 4, 2015. By order dated March 9, 2015, the trial court amended the February 19, 2015 order stating that it involves a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal will materially advance the ultimate termination of the matter. See 42 Pa.C.S.A. § 702(b); Pa.R.A.P. 1311. Further, the trial court stayed all custody matters pending resolution of Father's interlocutory appeal. See Order, 3/9/15. On April 1, 2015, Father filed a petition for permission to appeal, which this Court granted on May 6, 2015.
In addition to the aforesaid petition filed by Father on January 30, 2015, the court's March 9, 2015 order stayed Mother's petition for special relief to enforce the July 8, 2013 order regarding transportation to Pennsylvania and release of information.
On appeal, Father presents one question for our review:
1. Did the trial court abuse its discretion in denying [Father]'s Motion for Recusal and Exceptions?Father's Brief at 2.
This Court has explained:
We review a trial court's decision to deny a motion to recuse for an abuse of discretion. Vargo v. Schwartz , 940 A.2d 459, 471 (Pa. Super. 2007). Indeed, our review of a trial court's denial of a motion to recuse is exceptionally deferential. Id. ("[W]e extend extreme deference to a trial court's decision not to recuse[.]"). As we explained in Commonwealth v. Harris , 979 A.2d 387, 391-392 (Pa. Super. 2009) (quoting in part Commonwealth v. Bonds , 890 A.2d 414, 418 (Pa. Super. 2005)), "We recognize that our trial judges are 'honorable, fair and competent,' and although we employ an abuse of discretion standard, we do so recognizing that the judge himself is best qualified to gauge his ability to preside impartially." Hence, a trial judge should grant the motion to recuse only if a doubt exists as to his or her ability to preside impartially or if impartiality can be reasonably questioned. In re Bridgeport Fire Litigation , 5 A.3d 1250, 1254 (Pa. Super. 2010).In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014).
In order to prevail, Father, as the party seeking recusal, must satisfy the burden "to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially." In re S.H., 879 A.2d 802, 808 (Pa. Super. 2005) (quoting Arnold v . Arnold , 847 A.2d 674, 680-81 (Pa. Super. 2004)).
Further:
... 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. . . .Arnold v. Arnold , 847 A.2d 674, 680-681 (Pa. Super. 2004) (citation omitted).
Instantly, in the February 19, 2015 order denying Father's recusal request, the trial court stated that "it has followed and continues to follow Judicial Conduct Rule 2.2 in performing its duties fairly, impartially and using the [c]ourt's best judgment in determining the facts and applying the law in this custody matter since this litigation began in August 2011." Order, 2/19/15, at 1. Further, the court explained it was assigned this custody matter "in the usual course of the Schuylkill County Court's administrative procedure. . . . This Judge in applying and interpreting the law to the facts of the case always made its best effort to uphold the Custody Laws of the Commonwealth of Pennsylvania in the best interest of these children fairly and impartially. This Court shall continue to do so, and holds no bias or prejudice against Father even though Father may believe otherwise." Id. at ¶ 36.
Code of Judicial Conduct Rule 2.2 (Impartiality and Fairness) provides, "A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially." Likewise, in its opinion accompanying the March 9, 2015 order, the trial court stated that it also considered Code of Judicial Conduct Rule 2.11 (Disqualification). See Trial Court Opinion, 3/9/15, at 4. Notably, our Supreme Court in Reilly v. Septa , 507 Pa. 204, 489 A.2d 1291, 1298 (1985), overruled on other grounds as recognized by Gallagher v . Harleysville Mut., 617 A.2d 790, 794 (Pa. Super. 1992), stated that the Rules of Judicial Conduct "do not give standing to others, including the Superior Court, to seek compliance or enforcement of the Code because its provisions merely set a norm of conduct for all our judges and do not impose substantive legal duties on them."
On appeal, Father first argues that the trial court abused its discretion in denying his motion for recusal and exceptions by granting legal custody to Mother in the August 27, 2012 initial custody order. Specifically, Father asserts that the "grant of legal custody . . . was without basis and without rationale or even discussion of the same by Judge Miller, particularly as Mother had not even asked for legal custody in her petition." Father's Brief at 25. Therefore, Father claims that the award of legal custody demonstrated the court's "bias and prejudice for Mother at that time. . . ." Id. at 25-26.
In addition, Father asserts evidence of bias based on the trial court's erroneous statement in the February 19, 2015 order that, "The Trial Court's Order and Opinion under date of August 2[7], 2012 was affirmed by the Superior Court upon Father's Appeal." Order, 2/19/15, at 1. In the March 4, 2015 order, the trial court stated, "It is admitted that Father did not appeal the seventeen (17) page August 2[7], 2012 Court Order and Opinion with good reason." Order, 3/4/15, at ¶ 3. We discern no bias against Father on the basis of the court's erroneous statement that he appealed the August 27, 2012 initial custody order. To the extent Father asserts further bias by the court's statement in the March 4, 2015 order that he did not appeal the initial custody order "with good reason," we disagree. We discern the trial court's statement as simply reflecting its belief in the factual and legal support for the August 27, 2012 initial custody order.
Mother responds in her appellee brief that the court primarily based its initial legal custody award upon the testimony and custody evaluation of Dr. Shienvold, who testified with respect to the deterioration of the parties' ability to cooperate and communicate regarding the children. See Mother's Brief at 19. Indeed, the trial court stated in its March 4, 2015 order, when it denied Father's exceptions, that "[a]s amply set forth in the Opinion [accompanying the August 27, 2012 opinion], the Court considered and discussed the opinion of the expert evaluator, Arnold T. Shienvold, Ph.D. . . ." Trial Court Order, 3/4/15, at ¶ 3.
Upon review, we conclude that this issue is waived for lack of a complete record. Specifically, as set forth above, the underlying custody action was commenced in August of 2011. The certified record before this Court includes three parts, and begins with our decision in W.P. v. J.P., 1955 MDA 2013 (filed April 25, 2014) (unpublished memorandum). As such, neither the transcript from the evidentiary hearing resulting in the August 27, 2012 initial custody order, nor the opinion accompanying the order, is included in the certified record.
It is well-settled that we cannot consider anything which is not part of the record. Jahanshahi v. Centura Development Co., Inc., 816 A.2d 1179, 1183 (Pa. Super. 2003); D'Ardenne v. Strawbridge and Clothier , Inc., 712 A.2d 318, 326 (Pa. Super. 1998). "Under Pa.R.A.P. 1921, during our consideration of an appeal, we must accept and review only those papers which have been properly filed and docketed in the trial court." In re D.D., 597 A.2d 648, 651 (Pa. Super. 1991). "[I]f a document is not in the certified record, the Superior Court may not consider it." Commonwealth v. Preston , 904 A.2d 1, 7 (Pa. Super. 2006). "The certified record consists of the 'original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court.'" Id. (quoting Pa.R.A.P. 1921).
At the time In re D.D., supra , was decided, Rule 1921 provided:
The original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.Pa.R.A.P. 1921. The Supreme Court amended Rule 1921, which is of no consequence here; the effective date of the amendment was August 13, 2008.
"It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal." Hrinkevich v. Hrinkevich , 676 A.2d 237, 240 (Pa. Super. 1996) (citation omitted); Kessler v. Broder , 851 A.2d 944, 950 (Pa. Super. 2004), appeal denied, 582 Pa. 676, 868 A.2d 1201 (2005). It is the appellant's responsibility to ensure that the necessary transcripts are included in the record. "It is not for an appellate court to scour the dockets of the various prothonotaries to confirm or deny allegations of any party to an appeal." Fiore v. Oakwood Plaza Shopping Center , 585 A.2d 1012, 1019 (Pa. Super. 1991); Commonwealth v. Preston , 904 A.2d 1, 7-8 (Pa. Super. 2006) (en banc), appeal denied, 591 A.2d 663, 916 A.2d 637 (2007). Where an appellant fails to fulfill his obligation, "the appellate court may take such action as it deems appropriate, which may include dismissal of the appeal." Pa.R.A.P. 1911(d); 42 Pa.C.S.A. § 706.
In this case, without the transcript from the evidentiary hearing resulting in the August 27, 2012 initial custody order and the opinion accompanying the initial order explaining the trial court's rationale, we are unable to conduct a proper review of Father's initial assertion due to waiver. See generally Commonwealth v. O'Black , 897 A.2d 1234, 1238 (Pa. Super. 2006).
We note, "[s]ince the Rules of Appellate Procedure apply to criminal and civil cases alike, the principles enunciated in criminal cases construing those rules are equally applicable in civil cases." Lineberger v. Wyeth , 894 A.2d 141, 148 n.4 (Pa. Super. 2006), citing Kanter v . Epstein , 866 A.2d 394, 400 n.6 (Pa. Super. 2004), appeal denied, 880 A.2d 1239 (Pa. 2005), cert. denied, Spector Gadon & Rosen , P.C. v. Kanter , 546 U.S. 1092 (2006).
Second, Father argues that the trial court abused its discretion in denying his recusal motion and his exceptions because it failed to amend the April 3, 2014 order pursuant to this Court's order filed on April 25, 2014. See W.P. v. J.P., 1955 MDA 2013 (filed April 25, 2014) (unpublished memorandum). As discussed above, this Court's April 25, 2014 order reversed in part the trial court's October 18, 2013 order, and directed the court "to fashion a suitable remedy" regarding reinstating G.P.'s reunification counseling.
The trial court explained, "the directive in the April 25, 2014 Order was moot since the . . . [c]ourt had already fashioned a suitable remedy on April 3, 2014[,]" which resulted from Father's second petition for contempt and emergency relief filed on January 17, 2014. Order of Court for Clarification, 3/4/15, at 1 (unpaginated). Specifically, the trial court's April 3, 2014 order replaced the reunification counselor, Ms. Riegel, with Joellen Rogers, Ph.D., the children's therapist at that time in Florida. Father appealed the April 3, 2014 order, which was docketed at 689 MDA 2014, and our disposition was filed on October 20, 2014.
In light of the foregoing procedural posture, we conclude that the trial court had reason to believe that it had already fashioned a suitable remedy regarding the continuation of reunification counseling for G.P. Indeed, when this Court filed its disposition on April 25, 2014, we did not know that a new reunification counselor was needed. As such, we conclude Father failed to satisfy his burden in seeking recusal on this basis.
Third, Father argues that the trial court abused its discretion in denying his motion for recusal and his exceptions because, in its opinion accompanying the October 3, 2013 order, the court stated, "Father left the marital home and moved away to Allentown . . . where his girlfriend resides, putting his own interests before that of the children. . . ." Father's Brief at 32. Father argued in his appeal from the October 18, 2013 order that this statement by the court was not relevant to the contempt proceeding before it. We agreed with Father that "such a consideration is not relevant to the contempt proceeding." See W.P. v. J.P., 1955 MDA 2013 (filed April 25, 2014) (unpublished memorandum at 6). We continued:
It is blatantly irrelevant to the issues before the court, such that its inclusion could raise the specter of "partiality, prejudice, bias" in Mother's favor. Gates v. Gates , 967 A.2d 1024, 1028 (Pa. Super. 2009) (stating the standard for the finding of an abuse of discretion). However, as irrelevant and inappropriate as this statement is, it is mentioned only in context of why the trial court previously determined that relocation would be in the children's best interest. Trial Court Opinion, 10/18/13, at 5. Father has not established that the trial court based its ruling on his petition for contempt on this consideration, and so he is due no relief on this claim.Id. at 6-7.
To the extent Father contends that this Court has already found "partiality, prejudice, bias" on the part of the trial court, we disagree based on our conclusion that the statement was made not in the context of denying Father's contempt petition, but in the context of determining Mother's relocation request. See id. Therefore, we discern no abuse of discretion by the trial court in denying Father's recusal request on this basis.
The crux of Father's remaining arguments is that our dispositions, docketed at 1955 MDA 2014 and 689 MDA 2014, concluding that the court abused its discretion in failing to grant Father's contempt petitions and erred in modifying the terms of the July 8, 2013 order relating to the reunification counselor, demonstrate that the trial court has repeatedly shown bias, partiality and prejudice in favor of Mother. Further, Father asserts that the court abused its discretion in failing to find that its continued involvement in this custody case "creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary." Arnold , 845 A.2d at 680-681. We reject Father's claims because adverse rulings by a trial court, even when reversed on appeal, do not mandate recusal. See Basile v. H.R. Block , Inc., 894 A.2d 786, 791 (Pa. Super. 2006) (en banc), vacated and remanded on other grounds, 589 Pa. 358, 909 A.2d 298 (2006) (stating "we note that two previous decisions of the trial court in this case have been reversed on appeal. This fact alone does not establish partiality, bias or prejudice on the part of the trial judge").
Instantly, with respect to our prior disposition reversing in part the October 18, 2013 order, and our disposition reversing the April 3, 2014 order, the trial court reasoned:
When applying and interpreting the law a Judge sometimes may make good faith errors of fact or law. Errors of this kind do not violate the Rules of impartiality and fairness and the appearance of the same in attempting to arrive at a decision that is just and fair to all the parties and especially in the best interest of the children.Trial Court Opinion, 3/9/15, at 5. Based on our review of the court's decision to deny Father's motion for recusal being "exceptionally deferential," and presuming that the trial court in this matter is "honorable, fair and competent," we conclude that Father has failed to establish that the Honorable Charles M. Miller's actions in the underlying matter merit recusal. Accordingly, we affirm the orders.
Orders affirmed.
Judge Ott concurs in the result.
Judge Strassburger files a concurring statement. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015