J-S04002-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.J.W., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

L.W.,

Appellee No. 1429 MDA 2014

Appeal from the Order Entered July 28, 2014

In the Court of Common Pleas of Lebanon County

Civil Division at No(s): 2013-20723

BEFORE: BOWES, ALLEN, and STRASSBURGER,*JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 08, 2015

K.J.W. (“Mother”) appeals from the July 28, 2014 custody order 

awarding L.W. (“Father”) primary physical custody of their nearly elevenyear-old son, J.W., and granting Mother overnight custody during three 

weekends per month. Mother asserts that the trial court erred in denying 

her motion to continue the custody hearing and by requiring her to 

participate in the custody trial without counsel. We affirm. 

Mother and Father married on December 9, 2002, and J.W. was born 

of the marriage during August 2003. The parties’ relationship eventually 

dissolved, and on October 3, 2013, Father filed for divorce. As Father’s 

divorce complaint did not include a count for custody of his son, on 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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November 12, 2013, Mother filed a custody complaint seeking shared legal 

custody of J.W. and primary physical custody. 

Since the itinerate nature of Mother’s legal representation during the 

course of this litigation is pertinent to our disposition, a comprehensive 

review of the procedural history is warranted. Mother’s first attorney Wiley 

Parker, Esquire, who represented Mother in a support matter, accepted 

service of Father’s divorce compliant. However, Bret Wiest, Esquire, 

subsequently entered his appearance and filed Mother’s November 2013 

custody complaint. Attorney Wiest represented Mother pro bono through a 

referral from MidPenn Legal Services’ program. Two months later, Attorney 

Wiest filed a motion to withdraw from representation citing Mother’s desire 

to fire him and proceed unrepresented. See Motion to Withdraw Entry of 

Appearance, 1/14/14 at 1. The trial court granted the motion the following 

day. 

Next, the trial court granted Father’s petition for a writ of ne exeat1

prohibiting Mother from removing J.W. from Lebanon County, Pennsylvania 

pending the custody litigation. Father was concerned that, in the absence of 

a custody order and in light of Mother’s statement that J.W. would only be in 

the county for approximately one more month, Mother would attempt to 

remove the child from the court’s jurisdiction. The court scheduled a 

____________________________________________

1 Ne exeat is a writ ordering a person to whom it is addressed not to leave 

the court’s jurisdiction. See Black’s Law Dictionary 1054 (7th ed. 1999). 
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conciliation conference for January 27, 2014, where Mother appeared pro se. 

Following the conciliation conference, the court entered an interim custody 

order awarding Mother primary custody and granting Father five-hour 

periods of physical custody on Monday and Tuesday evenings. The order 

provided that once Father secured suitable housing, he could exercise 

weekly overnight custody between Monday afternoon and Wednesday 

morning. 

Mother retained her next attorney, Colleen Gallo, Esquire, on April 1, 

2014, who entered her appearance for the pretrial conference. Following 

that meeting, the trial court declined to schedule a custody trial because the 

parties appeared to be working toward an amicable resolution of the custody 

dispute. The interim order continued to govern the custody arrangement. 

Three weeks later, Mother filed a motion to withdraw her custody complaint. 

The motion indicated that Mother desired to maintain the status quo outlined 

in the interim custody order granting her primary physical custody. 

Father countered that the interim order was insufficient to address all 

of the facets of the custody dispute, and he argued that Mother failed to 

comply with that interim order. Father complained, inter alia, that Mother 

interfered with his weekday custody on at least eight occasions between 

February 11, and April 1, 2014, and that J.W. was absent from school on six 

of those dates. Additionally, Father filed a motion to schedule the custody 
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trial. On May 13, 2014, the trial court granted Father’s motion and 

scheduled the custody trial for July 28, 2014. 

On May 30, 2014, Attorney Gallo filed a petition to withdraw from 

representation. That petition averred that Mother “has requested that 

Petitioner withdraw her appearance in the custody matter.” See Petition for 

leave to withdraw appearance in custody, 5/30/14 at (unpaginated) 2. The 

request was granted on June 2, 2014.2 The following day, Father filed a 

petition for contempt against Mother for failing to comply with the interim 

custody order. Specifically, Father alleged that Mother interfered with his 

ability to exercise physical custody and would not permit him to contact the 

mental health professionals treating their son. The scheduling order 

included a notation that the trial court mailed notice of the contempt hearing 

directly to Mother “Plaintiff (Pro Se).” Notice and Order to Appear, 6/6/14, 

at 2. After a hearing, on June 24, 2014, the trial court found Mother in 

____________________________________________

2 On July 1, 2014, Attorney Gallo reentered her appearance under the 

consolidated docket number governing both the custody case and the the 

divorce action, filed a counterclaim in divorce, and requested the 

appointment of a divorce master to address economic aspects of the divorce 

unrelated to custody. Since Attorney Gallo remained listed as the attorney 

of record when the custody trial occurred, she technically represented 

Mother at that juncture. However, it is clear from the record that Attorney 

Gallo’s appearance was for a limited purpose unrelated to the child custody 

litigation. Moreover, neither Mother nor the trial court treated Attorney 

Gallo’s representation in the divorce matter as extending to the custody 

litigation. 
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contempt. That order was mailed directly to Mother, again, with the pro se

designation. 

On July 22, 2014, nearly ten weeks after the trial court scheduled the 

custody hearing, and approximately six-and-one-half-weeks after Attorney 

Gallo withdrew her appearance in the custody case, Mother filed a pro se

motion for a continuance. Mother alleged that she was unrepresented, could 

not afford to hire private counsel, and although she sought representation

through MidPenn Legal Services, the agency was unable to represent her or 

refer her to pro bono counsel before the scheduled hearing. The trial court 

denied the motion summarily the following day, and after revisiting Mother’s 

request at the outset of the scheduled custody hearing, the court proffered 

its explanation on the record in open court. Thereafter, the trial court heard 

both parties’ evidence and entered the above referenced custody order 

awarding Father primary physical custody of J.W. and granting Mother 

partial physical custody on three weekends per month, alternating major 

holidays, and one full week of summer vacation. This counseled, timely 

appeal followed.3 Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing her 

concise statement of errors complained of on appeal concomitant with her 

notice of appeal. She raises two issues for our review:

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3 Attorney Parker, the lawyer who accepted service of Father’s divorce 

complaint on Mother’s behalf, represents Mother on appeal. 
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[1] Did the Lower Court err in denying Appellant[’s] . . . Motion 

for Continuance filed on or about July 22, 2014 to permit her to 

obtain counsel?

[2.] Did the Lower Court err requiring Appellant . . . to 

participate in the Custody Trial without counsel?

Mother’s brief at 6.4

This Court reviews a trial court’s decision to grant or deny a 

continuance for an abuse of discretion. Baysmore v. Brownstein, 771 

A.2d 54, 57 (Pa.Super. 2001). “An abuse of discretion is more than just an 

error in judgment and, on appeal, the trial court will not be found to have 

abused its discretion unless the record discloses that the judgment exercised 

was manifestly unreasonable, or the results of partiality, prejudice, bias or 

ill-will.” Id. There is no specific rule governing continuances in Pa.R.C.P. 

1915.1-1915.25, the sections of our procedural rules that relate specific to 

custody and visitation. Accordingly, we review Mother’s claim in light of the 

general rule delineated in Pa.R.C.P. 216. 

The applicable rule sets provides as follows:

Rule 216. Grounds for Continuance

(A) The following are grounds for a continuance:

(1) Agreement of all parties or their attorneys, if approved by 

the Court; 

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4 Mother does not challenge the merits of the trial court’s consideration of 

J.W.’s best interests pursuant to 23 Pa.C.S. 5328(a) or the court’s iteration 

of its considerations on the record at the close of the hearing. See N.T. 

7/28/14, at 224-237. 
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(2) Illness of counsel of record, a material witness, or a 

party. If requested a certificate of a physician shall be 

furnished, stating that such illness will probably be of 

sufficient duration to prevent the ill person from participating 

in the trial; 

(3) Inability to subpoena or to take testimony by deposition, 

commission, or letters rogatory, of any material witness, 

shown by affidavit which shall state: 

(a) The facts to which the witness would testify if present 

or if deposed; 

(b) The grounds for believing that the absent witness 

would so testify; 

(c) The efforts made to procure the attendance or 

deposition of such absent witness; and 

(d) The reasons for believing that the witness will attend 

the trial at a subsequent date, or that the deposition of the 

witness can and will be obtained; 

(4) Such special ground as may be allowed in the discretion 

of the court; 

(5) The scheduling of counsel to appear at any proceeding 

under the Pennsylvania Rules of Disciplinary Enforcement, 

whether: 

(a) as counsel for a respondent-attorney before a hearing 

committee, special master, the Disciplinary Board or the 

Supreme Court;

(b) as a special master or member of a hearing 

committee; or 

(c) as a member of the Disciplinary Board; 

(6) The scheduling of counsel to appear at any proceeding 

involving the discipline of a justice, judge or magisterial 

district judge under Section 18 of Article V of the Constitution 

of Pennsylvania, whether: 
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(a) as counsel for a justice, judge, or magisterial district 

judge before the special tribunal provided for in 42 Pa.C.S. 

§ 727, the Court of Judicial Discipline, the Judicial Conduct 

Board or any hearing committee or other arm of the 

Judicial Conduct Board; or 

(b) as a member of the Court of Judicial Discipline, the 

Judicial Conduct Board or any hearing committee or other 

arm of the Judicial Conduct Board. 

Pa.R.C.P. 216. 

Herein, there was no agreement between the parties, illness, discovery 

issue, or applicable scheduling conflicts. Thus, the only potential ground for 

Mother’s request for a continuance in this case was under Rule 216(A)(4) 

“Such special ground as may be allowed in the discretion of the court[.]” 

Instantly, our review of the record does not reveal that the court abused its 

discretion in denying Mother’s motion. 

At the beginning of the custody hearing, the trial court engaged 

Mother in a lengthy discussion about her request for the continuance. First, 

the trial court listed the attorneys who had represented Mother since she 

filed the underlying custody complaint, culminating with Attorney Gallo’s 

withdrawal on June 2, 2014. See N.T., 7/28/14, 6-7. Mother confirmed 

that she was unable to afford Attorney Gallo’s representation in the custody 

case. Id. at 7, 8. Next, the court highlighted that Mother had 

approximately six-and-one-half weeks from the date of Attorney Gallo’s 

withdrawal to find another lawyer to represent her at the custody hearing 

but failed to do anything other than contact MidPenn Legal Services to help 

her secure a continuance. However, that effort was ineffectual. Indeed, 
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when the agency contacted Father’s attorney to request the scheduling 

accommodation, it was still unaware that Mother had fired Attorney Wiest, 

the pro bono attorney who it originally referred to Mother to assist her in 

initiating this custody litigation. Id. at 8. 

Thereafter, the trial court considered Father’s bases for opposing 

Mother’s motion. The crux of Father’s position was that time was of the 

essence in this highly contentious custody litigation. Father cited Mother’s 

interference with his ability to exercise custodial rights, her lack of 

communication, and her unilateral decision making regarding J.W.’s mental 

health. Id. at 9-10. For instance, Mother previously refused to allow Father 

to access J.W.’s health records or contact his doctors, and after the 

contempt order directed her to release that information, Mother simply 

changed physicians without informing Father. Id. at 10-11. Additionally, 

Father was concerned that Mother would abduct J.W. despite the order 

requiring the child to stay within the county. Id. at 10. Also, noting that 

J.W.’s summer break was ending and that Mother had caused J.W. to miss 

several days of school during the prior academic year, Father desired to 

resolve the custody dispute and have his son settle into a routine before 

school started. Id. at 10, 11. 

Thereafter, the trial court issued the following findings:
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One, mother has had two previous counsel, both of whom have 

withdrawn their appearance.

Two, mother had previously continued a contempt proceeding 

under the basis of needing legal counsel.[5] And even though 

the Court granted that matter, she still appeared without 

counsel.

Three, the continuance asked in this matter . . . was filed almost 

seven weeks after the date set for the custody [hearing.]

Four, based on all of the circumstances in this case and the 

necessity to promptly address custody matters, the Court is 

compelled to deny the custody request.

N.T., 7/28/14, at 11-12. Prior to issuing the underlying custody order, the 

trial court revisited this issue a third time, reiterated the foregoing rationale 

and concluded, “The matter has gone too long. I felt the interest of the child 

trumped all of [Mother’s reasons] and denied [the request for a 

continuance]. Id. at 224. There is no basis to disturb the trial court’s 

determination. 

____________________________________________

5 The certified record does not support the court’s finding that it previously 

granted Mother a continuance so that she could obtain representation prior 

to the hearing on Father’s petition for contempt. The record confirms that 

Father filed his motion for contempt on June 3, 2014, and on June 6, the 

trial court entered an order scheduling a hearing for June 24, 2014. The 

certified record does include Mother’s putative request to continue that 

proceeding, and neither the request nor an order granting a continuance is 

noted on the list of docket entries. Moreover, the hearing occurred on the 

date originally scheduled. Consequently, the record will not sustain this 

aspect of the trial court’s findings. Hence, we do not consider this finding in 

affirming the trial court’s decision to deny Mother’s request to continue the 

custody hearing. 
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Initially, we observe that Mother’s attempt to bolster her position by 

referencing Corra v. Coll, 451 A.2d 480 (Pa.Super. 1982), is unpersuasive. 

In Corra, this Court confronted whether an indigent defendant in a civil 

paternity action filed pursuant to the now-repealed Pennsylvania Civil 

Procedure Support Law had a right to representation under the Fourteenth 

Amendment to the United States Constitution. In relevant part, after 

engaging in the required constitutional analysis, we found that regardless of 

whether the paternity action was state-initiated or simply prosecuted by an 

indigent Mother with a state-provided attorney, due process required the 

reciprocal appointment of counsel for an indigent defendant. Id. at 192-

193. We reasoned, “the legislature has conferred legal representation on a 

complainant upon the request of the court, or a Commonwealth or local 

public welfare official. We find no reason why an indigent defendant, 

accused of parentage, should not also be provided with assistance of 

experienced counsel.” Id. at 194. 

Mother’s reliance upon our holding in Corra is inapt within the domain 

of child custody litigation because the relevant aspects of the two actions 

simply do not equate. While a civil paternity case under the Pennsylvania 

Civil Procedure Support Law implicated at least some level of state action, 

there is no state action in a custody matter. As we discuss, infra, child 

custody litigation is purely private and the parties to the custody dispute are 

responsible for their own counsel. Thus, in contrast to the civil paternity 

case this Court addressed in Corra, where the statute provided for state-
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appointed counsel to represent indigent mothers, the legislature has never 

conferred legal representation to either parent in custody disputes. 

Accordingly, the Corra Court’s rationale is not instructive to the case at bar.

Additionally, the certified record validates that the trial court’s decision 

was not manifestly unreasonable or the results of partiality, prejudice, bias 

or ill-will. Prior to denying Mother’s motion for a continuance, the trial court 

considered all of the pertinent factors in this case, including the case history, 

Mother’s intermittent legal representation, the amount of time Mother had to 

locate yet another substitute counsel before the scheduled hearing, the 

effect of further delay upon Father, and most importantly, J.W.’s best 

interest.

Stated simply, while Mother lacked representation on the date of the 

hearing, she had been represented by several attorneys throughout this 

litigation, whom she either deemed ill fitting or too expensive. Mother had 

more than six weeks from the date that Attorney Gallo withdrew her 

representation to either retain private counsel or locate substitute pro bono

counsel. She did neither. Instead, Mother continued unrepresented, flouted 

the interim court order, and abused the authority that she wielded 

concomitant to that interim award of primary physical custody. Mother 

failed to cooperate with Father regarding basic issues, threatened to abscond 

with J.W., and elected to keep J.W. home from school rather than permit 

Father to exercise his court-ordered custodial periods. These actions sustain 

Father’s perspective that maintaining the status quo while Mother searched 
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for another lawyer would not only continue to prejudice him, but would also 

penalize J.W. As the trial court cogently opined, “The child should not be 

penalized because Mother has a history of becoming dissatisfied with her 

attorneys and firing them. The child’s interest trumped all and required 

proceeding with the custody trial.” Trial Court Opinion at 7. For all of the 

foregoing reasons, Mother’s claim fails.

Next, we address Mother’s complaint that the trial court erred in 

requiring her to proceed without the assistance of counsel. Mother does not 

assert that she was entitled to counsel. Indeed, it well ensconced that there 

is no absolute right to counsel in civil cases, including child custody cases. 

See Karch v. Karch, 879 A.2d 1272 (Pa.Super. 2005) (“There is no right to 

counsel in divorce, custody, or support proceedings.”); Rich v. Acrivos, 815 

A.2d 1106, 1108 (Pa.Super. 2003) (affirming trial court’s decision to deny 

husband court-appointed attorney in divorce proceedings); Wilt v. 

LaLonde, 762 A.2d 1109 (Pa. Super. 2000) (Sixth Amendment right to 

counsel did not extend to a custody and visitation cases). Rather than 

assert a non-existent right to counsel, Mother delineates a litany of trial 

court errors and argues that, but for the court’s demand that she litigate her 

custody complaint pro se, the errors could have been highlighted and 

corrected. Again, no relief is due. 

First, the trial court did not require Mother to litigate her case pro se. 

As we previously discussed, Mother had sufficient time to obtain legal 

representation in this case. However, since Mother failed to secure counsel 
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prior to the custody hearing or a continuance to maintain the status quo, the 

trial court properly demanded that the custody hearing proceed regardless of 

the status of Mother’s legal representation. Our jurisprudence is 

unambiguous in that a pro se litigant takes upon the risks associate with the 

absence of any legal training. See Rich, supra at 1108 (quoting Vann v. 

Unemployment Compensation Board of Review, 494 A.2d 1081, 1086 

(Pa. 1985)) (“any layperson choosing to represent himself in a legal 

proceeding must, to some reasonable extent, assume the risk that his lack 

of expertise and legal training will prove his undoing.”). Indeed, while 

Mother concedes this principle, she asserts that the trial court overstepped 

its bounds and made Mother’s presentation of her case more difficult. The 

record belies Mother’s assertion. Contrary to Mother’s protestations, the 

trial court made deliberate efforts to help Mother keep her argument on 

course during the custody hearing, including providing her a copy of the § 

5328(a) best interest factors that would be dispositive of the child custody 

case. Accordingly, no relief is due. 

For all of the forgoing reasons, we affirm the order awarding Father 

primary physical custody of his eleven-year-old son. 

Order affirmed.

Judge Allen joins this disposition.

Judge Strassburger concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015