From The Legal Intelligencer: Custody Appeal Vacated as Untimely After Denial of Reconsideration​

In an article published in The Legal Intelligencer, Obermayer partner Michael Bertin examines the importance of the interplay between motions for reconsideration and timely appeals and how it can cause trouble if the litigant and attorneys are not careful. The original source can be accessed here.

The interplay between motions for reconsideration and timely appeals is one that can cause trouble if the litigant and attorneys are not careful. Frequent discussion occurs among attorneys as to whether the filing of a motion for reconsideration tolls the appeal period when one can file an appeal. However, the issue is not as simple as it may seem.
Recently, the Pennsylvania Superior Court case of J.P. v. J.S., ___ A.3d ___, 2019 Pa. Super. 2011 (Pa. Super. 2019) addressed this issue head on. The J.P. case pertained to a child custody decision entered by the trial court permitting the father to relocate with the child from Philadelphia to Montgomery County. The trial court also granted primary physical custody to the father. The order entered by the trial court was dated Jan. 2. According to the Superior Court decision, the mother timely filed a petition for reconsideration Jan. 7 and, thereafter, retained counsel who entered her appearance on Jan. 14 and filed a petition to modify custody.

On Jan. 29, the trial court entered an order denying reconsideration. Specifically, the order stated, in part: “Mother seeks reconsideration of our order Jan. 2, granting the father’s request to relocate and granting the father primary physical custody. This petition for reconsideration was filed without the assistance of counsel, which is the mother’s prerogative. Upon examination of the mother’s reasons for filing the petition and consideration of the mother’s arguments for reconsideration, we deny, without a hearing, the petition, but amend our opinion to correct and clarify the record for the following reasons …” The order then provided four paragraphs to “correct and clarify the record.” The four points were as follows: “regardless of the mother’s living situation, ‘both parents perform their parental duties and attend to the daily needs of the minor child’; the court’s choice of school enrollment ‘better suits’ the child’s ‘needs at this time’; the court erroneously found that the mother missed the child’s dance recital when ‘it was the father who missed a dance recital,’ but ‘we nevertheless conclude that the father is more likely to ensure the minor child will attend extracurricular activities that she is involved in’; and despite the father working two jobs, the child’s ‘best interests would be served by granting primary custody to the father during the school year.’” According to the Superior Court opinion, the trial court order also specified that it did not resolve the mother’s outstanding petition to modify custody filed Jan. 14.

On Feb. 14, the mother filed her appeal. The Superior Court found that the mother’s appeal was untimely and quashed the appeal. In analyzing the timeliness of the mother’s appeal, the Superior Court found that the Jan. 2 order was a final order. Quoting Judge Phyllis Beck, from a prior holding following an en banc review of a case, the Superior Court held that a custody order will be considered final and appealable only if it is both “entered after the court has completed its hearings on the merits; and intended by the court to constitute a complete resolution of the custody claims pending between the parties.” Because the Superior Court found that the trial court’s Jan. 2 order was a final order, the focus turned on when did the mother file her appeal.

Under the Rules of Appellate Procedure, an appeal must be filed within 30 days of the final order entered by the court. As reiterated by the Superior Court in the J.P. case, the denial of a motion/petition for reconsideration does not restart the clock for the 30-day window to appeal, as such a denial is not final or otherwise appealable.

According to Pa. RAP 1701: “Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or a petition for review begins to run anew after the entry of the decision of reconsideration, whether or not that decision amounts to a reaffirmation of the prior determination of the trial court or other government unit.” The terminology used and quoted under Rule 1701 is “an order expressly granting reconsideration.” The J.P. case provides more guidance and adds another layer. The Superior Court repeatedly states that the trial court should expressly vacate the order in addition to granting reconsideration in order to toll the appeal period.

The Superior Court in this decision, also provides that the best practice is to file both the reconsideration motion and notice of appeal simultaneously. By doing this, if the reconsideration is granted, it will render the notice of appeal inoperative, pursuant to Rule 1701, and if the motion for reconsideration is denied or not ruled on during the 30-day period, the appeal is preserved.

The interesting aspect of the J.P. case is that the trial court denied the motion for reconsideration but amended the opinion to correct and clarify the record. This appears to be what caused the confusion. However, the Superior Court clarifies that such action by the trial court is not tantamount to vacating the prior order. Further, it did not grant the reconsideration. The Superior Court, in its opinion, provides a reminder that under Rule 1701, the trial court is permitted to make corrections, as the trial court has the inherent authority to do so. The Superior Court further emphasized that the trial court stated that the changes “did not have a material impact on the outcome of our relocation and custody analysis … so we did not disturb the custodial arrangements from our Jan. 2 order.”

Lastly, the Superior Court recognized that the quashal of the mother’s appeal does not put the mother out of court, as litigants in custody matters can always file petitions to modify custody orders without showing a change of circumstances, as the best interest of the child is the polestar of all custody cases.

This case is important for all family law attorneys as it provides a reminder of the interplay between motions for reconsideration and appeals. Interestingly, by reading this case, it appears that it would be best for attorneys seeking reconsideration to also request that the trial court vacate the order in addition to granting the reconsideration in order to toll the appeal period. Further, to be safe, the filing of an appeal along with the motion for reconsideration is the best method as reiterated by the J.P. decision.

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book “Pennsylvania Child Custody Law, Practice, and Procedure.” He is the chair of the family law section of the Pennsylvania Bar Association, a Fellow of the American Academy of Matrimonial Lawyers, former chair of the family law section of the Philadelphia Bar Association and the current co-chair of its custody committee. Contact him at 215-665-3280 or michael.bertin@obermayer.com.