August 13 brought us a non-precedential ruling on two long disputed topics. The two quick takeaways are:
- Writing to a judicial officer including a judge about matters before the court is not an ex parte communication so long as the communication is instantly copied to other counsel in the case.
- Yes, while it is never good when courts don’t succeed in complying with deadlines to dispose of child custody cases, that failure is not likely to “undo” an otherwise complete judicial proceeding.
Some members of the legal community may respond with “of course” but others will be content to see these issues “affirmed.”
Dear v. Dear is a Chester County case concerning a now four year old child. Mother had filed for divorce before the child was born. After some attempts to keep things out of court father filed in July 2022 to secure a custody order. As often happens when there is an interim order entered and hearings are deferred, both parties began to file contempt matters based on perceived violations of the temporary order. All of these contempts were consolidated into hearings that took place over two days in March 2023. Based on what the court heard, psychological testing was ordered and the case resumed with four days of hearings in August 2023. The court then entered five orders disposing of all of the matters on October 23, 2023 from which mother filed a single appeal. So, we note that a final disposition of the July 2022 complaint required sixteen months.
The first issue on appeal concerned a letter from counsel for father to the presiding judge dated March 17, 2023. To be more precise, it is a letter written by a lawyer who was “about to” represent father. But she had not yet entered an appearance in substitution for the lawyer who was still father’s counsel of record. That’s certainly an issue in its own right. But the Superior Court correctly notes that the substitute counsel’s letter was simultaneously sent to counsel for mother and the opening paragraph to the judge details that mother’s counsel was notified in advance that the letter would be sent to the court.
This is a nettlesome topic. The basic premise of all litigation is that communications should be filed of record under oath as pleadings. That’s still the best practice but there are times when courts need to know what is going on in a case without having to summon the entire court file from the prothonotary. We could fill pages on the topic of when a letter is the right way to communicate and when the content belongs instead in a pleading under oath. Far too many lawyers seem to have forgotten the Supreme Court ruling from 1986 holding that lawyers may have immunity for what they file in pleadings but not for what they write in letters. 507 A.2d 351. But, the key point here is that a communication is not improper on its face in a setting where opposing counsel is provided with a copy of the communication at the same time. See also Com. v. Gonzalez, 112 A.3d 1232, 1240 (Pa. Super 2015)
The second issue on appeal was the 16 months it took to get to a result. Pa.R.C.P. 1915.4 provides that a trial shall begin no more than 90 days after the scheduling order is entered and shall be concluded within 45 days from commencement. Judges are to file their findings and rulings within 15 days of the conclusion of the trial. The rule has been around since 2000 and lawyers are constantly asked: “What does this mean in my custody case?” The answer is not at all clear.
Accidents, illness and pre-paid vacations do happen. The case was certified trial ready in November and was scheduled in accordance with the 90 day deadline. Alas, one attorney injured himself and then was not available on the re-schedule date because of a planned vacation. The trial began in mid-March. We don’t know exactly what transpired during the two days of trial but the appellate opinion refers to mother’s court ordered psychological evaluation as a basis for the delay.
This is a topic worthy of more consideration than it got. Many times, it is not until the testimony begins that psychological or psychiatric issues begin to unfold. This leaves judges in a quandary. In this case, the judge elected to adjourn proceedings for months while psychological reports were prepared. The better route might have been to state to both counsel. “I have heard the testimony and I have mental health concerns. You can insist I move forward without outside input or you can waive the 1910.4 limits so that we can get independent psychological input. I need to follow the rule unless you waive it because the rule is not a suggestion.”
Judges are often in a tough place. They often leave the bench wanting more or different evidence than what was presented. But that often occurs in civil and criminal cases as well where a continued trial is rarely, if ever, granted. It is vitally important to get custody “right” but it is also important for the litigants and the child to “get it done.” Prolonged custody litigation has a “lather, rinse, repeat” aspect because new evidence evolves every day concerning the children and every adjournment invites a request to “update” the evidence.