J-S17016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHAD BATTERMAN 

Appellant

v.

SILVIA SANTO

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 145 EDA 2022

Appeal from the Order Entered December 20, 2021

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2019-06877

BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 27, 2022

Chad Batterman (Father) appeals from the order, entered in the Court 

of Common Pleas of Montgomery County, denying his petition to proceed in 

forma pauperis (IFP).1 After our review, we reverse and remand for a hearing 

on Father’s petition. 

Father and Silvia Santo (Mother) were married in November 2014 and 

separated in November 2017.

2

 Mother and Father are the parents of C.B. and 

D.B. (Children), ages 5 years and 3 years, respectively. On February 12, 

2018, the court entered an order granting the parties shared legal custody of 

the Children, granting Mother primary physical custody, and granting Father 

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1 An order denying IFP status is a final, appealable order. See Grant v. 

Blaine, 868 A.2d 400, 402 (Pa. 2005). 

2 Mother commenced divorce proceedings, but the record does not disclose 

whether a divorce decree has been entered. 

 
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partial physical custody (one day a week and every other weekend). See

Order, 2/12/18. On May 3, 2019, the trial court3 entered a custody order 

granting Mother sole legal custody and primary physical custody of the 

Children and granting Father partial physical custody of the Children. See

Order, 5/3/19. Since 2017, this custody matter has accumulated over 370 

docket entries, primarily from Father’s efforts to obtain contempt orders 

against Mother.

4

 

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3 The parties’ litigation was initiated in Philadelphia. The May 3, 2019 order 

was entered in the Court of Common Pleas of Philadelphia. Thereafter, the 

matter was transferred to Montgomery County. 

4 Despite words of caution and criticism by the Honorable Melissa S. Sterling, 

Father has continued his litigious pursuit. Judge Sterling stated:

Dozens of emergency petitions, petitions for contempt, 

reconsideration motions, appeals and numerous filings against 

third parties [including children’s physicians, local police, and 

maternal grandparents] seeking discovery regarding the 

[c]hildren, have been filed with this [c]ourt and the Pennsylvania 

Superior Court and have been heard before numerous judges. 

. . . Despite numerous warnings and threats of sanctions being

imposed against him, Father continues to file [and] seeks 

contempt ruling after contempt ruling, hoping to increase his 

custody time while reducing Mother’s. . . . Father’s continued 

abuse and misuse of the court system in his attempts to gain the 

upper hand cannot be ignored[.] . . . We do not make our decision 

today lightly, particularly given the four-year, non-stop battle over 

these small children and the continued abuse of court time and 

resources. It appears to us that their spiteful litigation has almost 

become a full-time job for these parents. We know Father seeks 

an equal parenting role, but we do not believe that would be the 

correct decision at this time. These parents must learn to coparent as peacefully as they possibly can. Once they reach that 

state of mind–that their children are more important than their 

(Footnote Continued Next Page)
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On July 16, 2021, following Father’s petition for modification of custody

and a five-day hearing, the court entered an order maintaining sole legal and 

primary physical custody of the Children in Mother5 and adjusting Father’s 

partial physical custody award to two days during the week (Tuesday from 

8:00 a.m. until Wednesday at 7:00 p.m.), and every other weekend (Friday 

at 5:00 p.m. to Monday at 8:00 a.m.). See Order, 7/16/21. 

The instant matter stems from Father’s prior appeal of an October 27, 

2021, order awarding Mother seven “makeup” days of physical custody of the 

Children as a result of “Father’s unauthorized withholding of the [C]hildren for 

seven days.” Trial Court Opinion, 1/24/22, at 1. After a one-day trial on 

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battles–we are hopeful that they will be able to jointly make the 

right decisions for the Children. But for now, one parent must 

have the ability to make final decisions on critical issues such as 

health and education and, having heard 5 days of testimony, 

reviewed both parties’ exhibits and considered all the evidence 

before us, we believe the [o]rder we have issued today is the 

fairest we can provide.

Findings of Fact, 7/16/21, at 2-5, 9, 12. 

5 With respect to legal custody, the court order contained the following 

provision: 

Due to the inability of these parents to come to any significant 

agreement on the raising of their Children and the [c]ourt’s 

determination that [Mother] is better able to make the day-to-day 

decisions, Mother shall have sole legal custody of the Children. 

However, before making decisions regarding the Children other 

than emergency decisions, Mother shall make reasonable efforts 

to advise [Father] so that he may provide his input. The ultimate 

decision-making shall be up to Mother. 

Order, 7/16/21.
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October 14, 2021, the court entered an order awarding Mother the seven 

makeup days. Father filed a motion for reconsideration, and an amended 

motion for reconsideration, both of which the court denied. Father filed an 

appeal to this Court, docketed at 2455 EDA 2021, but he did not include an 

order for the trial transcript, as required by Pa.R.A.P. 904(c)6 and Pa.R.A.P. 

1911(a).7 This Court ultimately dismissed that appeal.

8

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6 Rule 904(c) states: 

The request for transcript contemplated by Pa.R.A.P. 1911 or a 

statement signed by counsel that either there is no verbatim 

record of the proceedings or the complete transcript has been 

lodged of record shall accompany the notice of appeal, but the 

absence of or defect in the request for transcript shall not affect 

the validity of the appeal. 

Pa.R.A.P. 904(c) (emphasis added). 

7 Rule 1911(a) states: 

The appellant shall request any transcript required under this 

chapter in the manner and make any necessary payment or 

deposit therefor in the amount and within the time prescribed by 

Rules 4001 et seq. of the Pennsylvania Rules of Judicial 

Administration. 

Pa.R.A.P. 1911(a) (emphasis added). 

8 On January 3, 2022, in his appeal docketed at 2455 EDA 2021, this Court 

denied Father’s petition for emergency relief, stating:

In light of the trial court’s order denying appellant’s petition for in 

forma pauperis [status], on December 20 2021, an order was 

entered directing appellant to order and pay for the pertinent 

transcript no later than December 27, 2021. Appellant was 

(Footnote Continued Next Page)
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On December 14, 2021, the trial court directed Father to order the 

transcript from the October 14, 2021 trial. On December 16, 2021, Father 

filed a petition seeking IFP status, which the trial court denied. See Order, 

12/20/21. Father filed this timely appeal on December 23, 2021. 

On appeal, Father clams the trial court erred as a matter of law by 

denying his petition to proceed IFP. Appellant’s Brief, at 1. Father argues the 

trial court violated his due process rights by failing to schedule a hearing on 

his petition. Id. at 3.9

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cautioned that a failure to order and pay for the transcript would 

result in dismissal of this appeal without further notice of Court.

Appellant has failed to order and pay for the transcript as directed. 

Accordingly the appeal at 2455 EDA 2021 is hereby DISMISSED. 

Order, 1/3/22. On January 9, 2022, Father filed a petition for reconsideration 

of the order dismissing his request for emergency relief, and on January 10, 

2022, he filed an amended petition for reconsideration. This Court denied 

both motions on January 28, 2022. See Order, 1/28/22. We underscore the 

fact that this Court’s dismissal order was based on Father’s failure to order 

and pay for the relevant transcript; the merits of the trial court’s denial of IFP 

status was not at issue in that appeal. The present appeal concerns only the 

IFP petition. The underlying matter—the makeup days issue–though not 

pending, was dismissed. However, because we are vacating the trial court’s

order and remanding this matter back to the trial court, we decline to address 

the mootness issue. See In re Gross, 382 A.2d 116 (Pa. 1978) (it is well 

established that actual case or controversy must exist at all stages of appellate 

review, and courts of this Commonwealth will not decide moot questions). 

9 We note the procedural confusion in this case. The trial court did not order 

Father to file a Pa.R.A.P. 1925(b) statement. However, on December 27, 

2021, Father did file a Rule 1925(b) statement, but he did not include the 

issue he raises in his appellate brief. Father did “reserve” the right to file an 

amended statement. See Pa.R.A.P. 1925(b) Statement, 12/27/21. On 

January 11, 2022, Father filed an amended Rule 1925(b) statement, which 

included his IFP claim. There, Father averred the trial court erred in denying 

(Footnote Continued Next Page)
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This Court will only reverse an order denying an IFP petition if the trial 

court committed an abuse of discretion or an error of law. D.R.M. v. N.K.M., 

153 A.3d 348, 350-51 (Pa. Super. 2016).

Judicial discretion requires action in conformity with law on facts 

and circumstances before the trial court after hearing and 

consideration. Consequently, the court abuses its discretion if, in 

resolving the issue for decision, it misapplies the law or exercises 

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his IFP petition and that the court “erred as a matter of law by denying 

[Father] a hearing regarding his [IFP] petition.” See Amended Rule 1925(b) 

Statement, 1/11/22. Adding to the confusion, the trial court refers to the 

December 27, 2021, Rule 1925(b) statement, and states that that statement 

raised the issue of whether the court erred as a matter of law by denying 

Father’s IFP petition and reserved the right to file an amended statement. 

See Trial court Opinion, 1/24/22, at 3-4. However, as noted above, Father’s 

first Rule 1925(b) statement, dated 12/27/21, made no mention of the IFP 

petition, and raised issues pertaining only to contempt and the court’s order 

granting Mother makeup days. In its December 27, 2021, opinion, the court 

addressed the issues of contempt and the award of makeup days. See Trial 

Court Opinion, 12/27/21, at 7-11. 

Rule 1925(b) permits the filing of a supplemental statement in two limited 

circumstances. First, Rule 1925(b)(2) provides that, “[u]pon application of 

the appellant and for good cause shown, the judge may enlarge the time 

period initially specified or permit an amended or supplemental Statement to 

be filed.” Pa.R.A.P. 1925(b)(2) (emphasis added). Second, the Rule provides, 

“[i]n extraordinary circumstances, the judge may allow for the filing of a 

Statement or amended or supplemental Statement nunc pro tunc.” Pa.R.A.P. 

1925(b)(2). Although we cannot countenance Father’s unilateral reservation 

of his right to file an amended statement, we decline to find waiver here,

where the trial court did not order a Rule 1925(b) statement and the court 

addressed, in its January 24, 2022, opinion, the issue raised in Father’s 

January 22, 2022, Rule 1925(b) statement. See Trial Court Opinion, 1/24/22, 

at 7-8. Cf. Commonwealth v. Woods, 909 A.2d 373, 377 (Pa. Super. 2006)

(merely adding language to closing paragraphs of Rule 1925(b) statement, 

reserving additional time to file supplemental statement, without leave of 

court, will not preserve issues for appeal). 
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its discretion in a manner lacking reason. Similarly, the trial court 

abuses its discretion if it does not follow legal procedure.

An abuse of discretion exists when the trial court has rendered a 

decision or a judgment which is manifestly unreasonable, 

arbitrary, or capricious, has failed to apply the law, or was 

motivated by partiality, prejudice, bias or ill will.

Conway v. Conway, 209 A.3d 367, 371 (Pa. Super. 2019) (citation omitted). 

In determining IFP status, the trial court must satisfy itself of the truth 

of the averment of an inability to pay the costs of litigation, and if it believes 

the petitioner’s averments, there is no requirement that the court conduct an 

evidentiary hearing. Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. 

Super. 2008), citing Amrhein v. Amrhein, 903 A.2d 17, 19 (Pa. Super. 

2006). However, if the court disbelieves even some of the petitioner’s 

averments, an evidentiary hearing must be held. Amrhein, supra. See 

also Crosby Square Apartments v. Henson, 666 A.2d 737 (Pa. Super. 

1995); In re Adoption of B.G.S., 614 A.2d 1161 (Pa. Super. 1992); 

Koziatek v. Marquett, 484 A.2d 806 (Pa. Super. 1984). Although the trial 

court has considerable discretion in determining whether a person is indigent 

for purposes of an IFP application, Amrhein, supra, in making that 

determination, the trial court must focus on whether the person can afford to 

pay and cannot reject allegations contained in an application without 

conducting a hearing. Cannon, supra; Crosby Square, supra. 

Here, the trial court noted that Father’s requests for IFP status had been 

denied in two prior proceedings before other trial court judges. See Trial 

Court Opinion, 1/24/22, at 4-5. The court also noted that Father had taken 
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the children on vacation for three weeks in South Carolina a few months prior 

to filing the instant IFP petition, finding that “simply inconsistent with the 

averment in his [p]etition that he had no assets, no income, and no 

contributions from others.” Id. at 6. Essentially, the trial court disbelieved 

Father’s averments, but despite the fact that the court acknowledged “a 

hearing on a petition for IFP status is generally required before the petition 

can be denied,” the court reasoned that under the exceptional circumstances 

of this case, that rule should not apply. 

We agree with the trial court that the circumstances of this case are 

exceptional, and, more to the point, egregious. However, we are aware of no 

authority supporting an exception to the rule that, if the court disbelieves 

averments in an IFP petition, it is incumbent upon the court to hold a hearing. 

In Amrhein, this Court summarized the relevant law as follows: 

The Crosby Square Court [] noted that when considering 

whether an individual is indigent, the trial court must focus on 

whether he or she can afford to pay and cannot reject the 

allegations contained in an application without conducting a 

hearing. If some allegations in the application are accepted but 

others are rejected, a hearing nonetheless is required. . . . In 

Goldstein v. Haband Company, Inc., [814 A.2d 1214 (Pa. 

Super. 2002),] we reiterated that a trial court’s disbelief of 

averments in an IFP application requires the court to hold 

an evidentiary hearing to determine the veracity of the 

claim of the inability to pay costs.

Amrhein, 903 A.2d at 23-24 (some internal citations and quotations omitted)

(emphasis added). 
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Here, the court assessed the credibility of Father’s allegations that he 

was unable to afford the costs of his appeal without holding a hearing. In fact, 

the court stated that “[t]he lack of veracity in Father’s IFP [p]etition was selfevident.” Trial Court Opinion, supra at 8. The court, therefore, abused its 

discretion in denying the petition without a hearing. Conway, supra. We 

are constrained to reverse and remand for a hearing on Father’s IFP petition.

Order reversed; case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/2022