A Superior Court decision issued May 30 affirming a Chester County trial court illustrates the problems created when trial courts try to alter the course of custody proceedings. The problem begins with the twin roles courts are assigned in the custody world. Rules were adopted by the Supreme Court in 2013 to have custody decisions fast tracked so that these cases don’t linger. But as Lu v. Li 3368 EDA 2024 shows, courts also are supposed to act in the best interests of the children and reach the ”right” decision the first time. Those goals conflict as we can see here.
The litigants are the parents of 2 minor children. They separated in 2017 and had been working from a 2018 order imposed after a conciliation conference. In 2022 Mother filed to modify and the conciliator recommended Father’s custody be supervised and the children secure counseling. Father demanded a trial de novo. Mother responded with a request for an evaluation and the court made an appointment of a psychologist 90 days after the concilation was concluded.
Now the problems begin. The order contained routine provisions about cooperation and split of fees pending a report and hearing on the merits. While the evaluation is underway the court conducts three more concilation conferences. In March 2023 a new evaluating psychologist is substituted. A year passes. In April 2024 Mother files a contempt petition because Father is not remitting the fees necessary to have the substitute psychologist’s report released. Father, now representing himself, protests that the charges and evaluations are “unreasonable”, “dishonest” and “absurd.” In June 2024 there is a hearing on contempt and Father is ordered to pay the mandated fees. He appeals. The appeal is quashed because no sanction was imposed. Father asked first for reconsideration and then sought Supreme Court review. His application was untimely.
In the meantime Mother filed a second contempt alleging the fees for the report had still not been paid. Father rebooted the same arguments, i.e., 60 hours is unreasonable time for such a report. He also sought counsel fees for vexatious litigation. So in November 2024 there is a second contempt hearing. This produces a jousting match between the trial judge and Father. Father says he will pay the expert that day (Nov. 2024; two years after the evaluation was ordered) but when the court imposed a counsel fee sanction, Father elected to appeal the order. Curiously, the part of the order that made it appealable; the counsel fee award, was not listed as an error on appeal. Instead the appeal is an attack on the psychologist who (a) charged too much (b) did too little and (c) only gets one star on some app where clients can rate her.
In a 21 page opinion, the Superior Court notes that Father dropped the ball procedurally in terms of his issues raised on appeal and that his arguments at the second contempt hearing were nothing more than a rehash of his defenses at the first hearing.
In a footnote the appellate court does acknowledge that a $35,000 fee including 60 hours for record review and report writing might merit consideration as excessive but that the issue was not properly before it. Neither the opinion nor the concise statement filed by Father references the attorneys fee award that made the matter appealable.
Now is the time to Stop. Look. Listen to where we are. Modification filed in 2022. Granted in 2022 without a formal hearing. Evaluation begins November 2022. Evaluation was presumably over in April 2024 when first contempt is filed by Mom because Father won’t pay his half. From what we can decipher this modification request is three years old and no testimony has been heard about the interests of the now 10 and 12 year old subjects of the litigation. Chances are high that the facts on which the much awaited evaluation is based were reported by children much younger 18 months ago. Is it time for an “update?” To ask the question is cringeworthy both in terms of time and added cost.
The point of adopting speedy trial rules like Pa.R.C.P. 1915.4 was to dispose of matters promptly. This case is approaching its third anniversary with no record hearing on the merits. The switch in evaluators is certainly an unexpected hiccup but that should have prompted the trial court to consider having some record proceeding related to the change to supervised visits. Father seems to be playing his own game here but it could well be that supervision was an improper remedy from the beginning.
Fast disposition is a laudable goal. Unfortunately the appellate cases show it to be an illusory one. In this case it should be noted that Mother sought an evaluation only after securing a reduction to supervised visits. In custody world, any meaningful evaluation by an independent third party is usually a six month slog even when the reports are paid for promptly and there is no change in personnel. In the past, once a party appealed any final order, the Superior Court would start to electronically ding the trial court to forward the record and write its opinion. Perhaps a similar bell should be devised to remind custody courts that the temporal deadlines in the rules are being missed and that corrective measures should be implemented to get the case on a track toward a final order.