J-S32017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.R.

v.

H.P.R. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 159 EDA 2019

Appeal from the Order Entered November 20, 2018

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

No(s): 2018-00303

BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.: FILED JULY 25, 2019

H.P.R. (Father) appeals pro se from the order denying his emergency 

petition to modify custody with respect to his now eighteen-year-old daughter, 

A.M.R. (Child), and his emergency petition for contempt in custody. For the 

reasons that follow, we dismiss Father’s appeal as moot. 

The relevant factual and procedural history of this appeal is as follows. 

Father and A.R. (Mother) married in May of 1997. Three children were born 

during the marriage: R.R. (born in October of 1997), H.R., III (born in 

February of 1999), and Child (born in May of 2001). The parties separated in 

late 2017, and Mother filed a complaint in divorce on January 9, 2018. 

Thereafter, on March 23, 2018, Father filed an answer and counterclaim to 

the complaint in divorce, seeking, in relevant part, shared legal and physical 

custody of Child. 
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On May 9, 2018, the trial court entered an agreed-upon temporary 

custody order, providing Mother and Father with shared legal custody. Order, 

5/9/18, at 1. Mother obtained primary physical custody. Id. at 1-2. Further, 

the order required Father and Child to attend therapeutic reunification 

counseling. Id. at 2. By order entered May 25, 2018, the trial court1

appointed Gerald Cooke, Ph.D. as a custody evaluator, and it required Mother 

and Father to share the costs evenly. Custody Evaluation Order, 5/25/18.

On August 14, 2018, Father filed an emergency petition to modify 

custody and an emergency petition for contempt. In the emergency petition 

to modify custody, Father sought full physical custody, accusing Mother of 

engaging in improper parenting and causing Child to be alienated from him. 

Emergency Pet. for Modification of Custody Order, 8/14/18, at 8. In the 

emergency petition for contempt, Father asserted that Mother refused to 

return the paperwork and payment for Dr. Cooke to conduct a custody 

evaluation. Emergency Pet. for Civil Contempt for Disobedience of Custody 

Evaluation Order, 8/14/18 at 5.

The parties appeared for a hearing on September 21, 2018. At the

hearing, Mother and Father reached a tentative resolution of Father’s petition 

for contempt. By order entered September 26, 2018, the trial court awarded 

Father partial physical custody of Child for a two-hour brunch each Sunday 

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1 Judge Rhonda Lee Daniele presided over this matter until November of 2018. 
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and a two-hour dinner each Wednesday2 and directed Father and Child to 

resume reunification counseling. Order, 9/26/18, at 2. The order also 

provided that if “Plaintiff-Mother and [Child] comply with this [o]rder, it is 

understood that the contempt petition will be withdrawn by Defendant-Father, 

and no sanctions imposed.” Id. at 3. Further, the trial court scheduled a 

custody hearing for November 2018. Id. at 2. 

At the hearing on November 19, 2018, Father, acting pro se, presented 

the testimony of Mother, Father, and H.R., III. The trial court also conducted 

an in camera interview of Child.

3

 At the conclusion of the hearing, the trial 

court evaluated the custody factors on the record and ruled against Father. 

On November 20, 2018, the trial court entered the order denying

Father’s petitions, directing Father to participate in individual therapy and 

anger management, and requiring Mother and Father to participate in family 

therapy. Order, 11/20/18, at 1-2. The trial court declined to enter a formal 

custody schedule, while noting, “[Child] may visit with her Father at her 

discretion and is encouraged to do the same.” Id. at 1.

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2

 The order specified, “Defendant-Father shall not converse with [Child] 

regarding the parties’ divorce, financial matters, litigation, and/or PlaintiffMother’s personal life.” Order, 9/26/18, at 2.

3 Judge Carolyn Tornetta Carluccio presided over the November 19, 2018 

hearing and entered the November 20, 2018 order that is the subject of this 

appeal. Child was approximately seventeen and one-half years old at the time 

of the hearing. 
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On December 19, 2018, Father timely filed a notice of appeal. Father 

filed a Pa.R.A.P. 1925(b) statement on January 17, 2019.4 Father’s Rule 

1925(b) statement consists of ten single-spaced pages, in which he asserts

that (1) the trial court erred in its analysis of numerous custody best interest 

factors, (2) the court precluded Father from presenting sufficient evidence of 

alienation, and (3) Mother’s pre-trial statement contained “many falsehoods” 

that the trial court improperly took into account.5 Concise Statement of Errors 

Complained of on Appeal, 1/17/19, at 2-7. Father also challenged “[t]he 

dismissal of Judge Daniele’s order for a custody evaluation.” Id. at 7.

On appeal, Father has filed a pro se brief that does not comply with 

Rules of Appellate Procedure governing the form and content of an appellate 

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4 Father failed to file a concise statement of errors complained of on appeal 

concurrently with his notice of appeal in violation of Pa.R.A.P. 1925(a)(2)(i) 

and (b). On December 27, 2018, the trial court issued an order directing 

Father to file a concise statement within twenty-one days. Father timely 

complied. Because Mother does not claim prejudice as a result of Father’s 

procedural violation, we will not quash or dismiss his appeal as a result of this 

procedural misstep. See In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 

2009); cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010) (holding that 

appellant waived all issues by failing to file a concise statement of errors 

complained of on appeal when directed by the trial court).

5 Mother filed a motion to quash, asserting that Father’s Rule 1925(b) 

statement did not concisely or specifically identify the rulings or errors he 

intended to challenge on appeal. This Court denied the motion without 

prejudice. Mother has not renewed her objection to Father’s Rule 1925(b) 

statement. 
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brief.6 However, it appears that Father intends to challenge the trial court’s 

findings of fact and conclusions of law with respect to the court’s denial of his 

emergency petition to modify custody. Father “respectfully requests that the 

decision of [the trial court] be overturned and [Child] be removed from . . . 

Mother’s house immediately. [Child’s] 18th birthday is only weeks away 

and even a few days with Father would go a long way in reconciling 

the alienated relationship.”7 Father’s Brief at 43 (emphasis added). Father 

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6 Among other issues, Father’s brief does not contain a statement of the 

questions involved or a summary of the argument. See Pa.R.A.P. 2116, 2118. 

Although Father includes a lengthy background section, there are essentially 

no references to the record to support the facts he asserts. See Pa.R.A.P. 

2117(a)(4) (requiring, in relevant part, that a brief contain “[a] closely 

condensed chronological statement, in narrative form, of all the facts which 

are necessary to be known in order to determine the points in controversy, 

with an appropriate reference in each instance to the place in the record where 

the evidence substantiating the fact relied on may be found”). Father includes 

a section entitled “Errors by the Trial Court.” See Pa.R.A.P. 2119 (setting 

forth the requirements of the argument section of a brief). However, Father 

fails to include citations to authority beyond quoting various portions of 23 

Pa.C.S. § 5328(a). See Pa.R.A.P. 2119(a), (b) (requiring a properly 

developed argument for each question presented including a discussion of and 

citation to authorities in appellate brief); Commonwealth v. Buterbaugh, 

91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (failure to conform to the 

Rules of Appellate Procedure may results in waiver of the underlying issue).

This Court could dismiss this appeal based on a defective brief. See

Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996). However, 

we will construe Father’s brief liberally. See id. (reiterating that this Court 

may construe a pro se litigant’s material liberally but will not act as his 

attorney). 

7 Father certified that he served his brief on April 14, 2019, approximately one 

month before Child’s eighteenth birthday. 
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also asserts that the trial court erred in dismissing the fact that Mother failed

to comply with the Judge Daniele’s prior order for a custody evaluation.

8

 Id.

at 43. 

Generally, in custody cases under the Child Custody Act, (“the Act”), 23 

Pa.C.S. §§ 5321-5340, our standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type 

and our standard is abuse of discretion. We must accept findings 

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility 

and weight of the evidence, we must defer to the presiding trial 

judge who viewed and assessed the witnesses first-hand. 

However, we are not bound by the trial court’s deductions or 

inferences from its factual findings. Ultimately, the test is whether 

the trial court’s conclusions are unreasonable as shown by the 

evidence of record. We may reject the conclusions of the trial 

court only if they involve an error of law, or are unreasonable in 

light of the sustainable findings of the trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

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8 As to Judge Daniele’s order for a custody evaluation, Father’s argument 

consists of the following: 

Judge Carluccio gave no reason for the dismissal of the custody 

evaluation order ordered by Judge Daniele. She just dismissed it. 

Mother suffers from serious Cluster B personality disorders and 

she is infecting the children with the same. Mother refused to 

comply with Judge Daniele’s April 24th 2018 order and Judge 

Carluccio let her get away with it. In Judge Carluccio’s court, there 

is no rule of law. 

Father’s Brief at 34. We conclude that claim is waived based on the failure to 

develop a proper argument. See Pa.R.A.P. 2119(a), (b); Buterbaugh, 91 

A.3d at 1262; see also Smathers, 670 A.2d at 1160. In any event, we note 

that Father’s argument fails to discuss the September 21, 2018 hearing and 

Judge Daniele’s September 26, 2018 order. 
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The Act defines “child” as “[a]n unemancipated individual under 18 

years of age.” 23 Pa.C.S. § 5322. When discussing a former version of the 

Act, this Court observed:

A “child” is defined in this Commonwealth for domestic relations 

purposes, including custody proceedings, as “[a]ny 

unemancipated person under 18 years of age.” 23 Pa.C.S.[] § 

5302 [(repealed effective Jan. 24, 2011)]. The trial court’s 

jurisdiction in these proceedings is limited to proceedings 

involving children. Though appellant functions at a moderate level 

of retardation, chronologically she was eighteen years old at the 

time the trial court issued its order. Thus, because she was not 

a child at that time, the trial court was without proper 

subject matter jurisdiction. While other remedies may be 

available to the mother, she cannot compel appellant to 

visit her through this type of action. Therefore, we reverse 

and set aside the trial court’s order. This decision is in accord with 

Schmidt v. Schmidt, . . . 459 A.2d 421 ([Pa. Super.] 1983) in 

which we held that an adult cannot be compelled by court order 

to visit a parent against his or her will. Schmidt also involved an 

adult daughter with reduced mental capacity. However, unlike the 

facts in the case before us, there was strong evidence in Schmidt

that the parent seeking visitation was abusive and evoked intense 

feelings of fear and anger in the daughter.

Walker v. Walker, 523 A.2d 782, 784 (Pa. Super. 1987) (some citations 

omitted) (emphasis added).9

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9 We acknowledge that Walker applied the definition of “child” under a prior 

version of the Custody Act. Walker, 523 A.2d at 784. The current version of 

the Act contains an almost identical definition. Compare 23 Pa.C.S. § 5302 

(repealed effective Jan. 24, 2011) (“[a]ny unemancipated person under 18 

years of age”), with 23 Pa.C.S. § 5322 (“[a]n unemancipated individual under 

18 years of age”).
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The inability of a court to provide the relief requested by the party also

implicates the mootness doctrine. As this Court has explained: 

As a general rule, an actual case or controversy must exist at all 

stages of the judicial process, or a case will be dismissed as moot. 

An issue can become moot during the pendency of an appeal due 

to an intervening change in the facts of the case or due to an 

intervening change in the applicable law. In that case, an opinion 

of this Court is rendered advisory in nature. An issue before a 

court is moot if in ruling upon the issue the court cannot enter an 

order that has any legal force or effect. 

In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (citations and quotation 

marks omitted).10

Here, Child turned eighteen in May of 2019, while this appeal was 

pending. Because Child is now eighteen years old, neither Mother nor Father 

may be awarded legal or physical custody of Child pursuant to the Act. See 

Walker, 523 A.2d at 784. Further, Child is now free to live with Mother, 

Father, or neither parent. See id. Father’s request for his now-emancipated 

daughter to “be removed from [Mother]’s house immediately” is inconsistent 

with any relief available under the Act or that which this Court could provide 

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10 There are exceptions to the mootness doctrine when: “1) the case involves 

a question of great public importance, 2) the question presented is capable of 

repetition and apt to elude appellate review, or 3) a party to the controversy 

will suffer some detriment due to the decision of the trial court.” D.A., 801 

A.2d at 616. This matter implicates none of the exceptions.
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on appeal. See id. Therefore, we conclude Father’s appeal is moot and 

dismiss this appeal.

11

Appeal dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/19

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11 Had we not found Father’s issue to be moot, we would determine that the 

trial court’s conclusions do not involve an error of law or abuse of discretion.

We may reject the conclusions of the trial court only if they involve an error 

of law or are unreasonable in light of the sustainable findings of the trial court.

See V.B., 55 A.3d at 1197. Here, the trial court adequately and 

comprehensively explained its findings, and the competent evidence in the 

record supports them. Therefore, Father’s arguments, which essentially ask 

this Court to reweigh the evidence, would merit no relief. See id.