J

- A12003

- 23

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

EMANUELE CASSANI

v.

OLGA SOFIA KAMIAK

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2961 EDA 2022 Appeal from the Order Entered November 22, 2022 In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2019

- 20404

BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J. : FI LED OCTOBER 12, 2023
Olga Sofia Kamiak (“Mother”) appeals pro se from the November 22,

2022 custody order concerning the parties’ four

- year - old son, A.C. (“Child”)

. The challenged order denied as moot the emergency petition for contempt file
by Emanuele Cassani (“Father”) ; denied the parties’ cross - claims to modify

the cu stody order ; and granted Father’s request to travel with Child to Italy
in December of 2022, inter alia

. 1 We vacate and remand

.
I t is undisputed that Father is from Italy , and Mother is from Belarus.
Father initiated a divorce action in 2019, and the parties filed cross

- complaints
for custody of Child that same year

. The trial court issued a custody order on
January 14, 2020 (“original order”) , when Child was twenty

- one months old ,

_________________ __________ ______ ____ _______

1 Father did not file an appellee brief in this case.J

- A12003

- 23

- 2

-

which awarded the parties shared legal and physical custody on an alternating
weekly basis. In th e highly contentious underlying custody action, the parties
never contested the shared custody awar d.

Given their countries of origin, the original order included parameters

for the parties to travel internationally with Child. It required that Child have

a United States passport and that it be renewed on a timely basis

. However,
the original order pr ohibit ed Father from obtaining an Italian passport for

Child. In addition, when either party desired to take an international trip with

Child , the court required that he or she “submit a proposed order to the court
which shall contain Child’s proposed travel dates, itinerary, flight information
and address while traveling [abroad] . The parent proposing travel shall give
a minimum of 45 days wri tten notice.” Order, 1/14/20, at ¶ 9.

T he ensu ing procedural history is relevant to t his appeal

. On October
25, 2021, Mother filed a counseled petition to modify the original order , wherein she requested , in part, that the custody schedule be modified from
Child alternating between her and Father on a weekly basis to a 2

- 2

- 3 basis , which she averred was more suitable for the then three

- year - old Child. In
addition, Mother requested that the court suspend Child’s international
traveling until he is ten y ears old , alleging that Father intended to abscond

with Child. Father filed an answer denying Mother’s allegations

. On November 22, 2021 , Father filed a cross - petition to modify the
original order . H e requested , in part, that the parties no longer be requiredJ

- A12003

- 23

- 3

-

to submit a proposed order for international travel and that they be mandated
to provide 30 days’ notice of proposed travel rather than 45 days’ notice

. Father also requested that the court modify the Christmas custody s chedule

to accommodate his desire to travel with Child to Italy in alternating years.

The trial court scheduled a hearing on the above petitions for March 30,

2022. Pursuant to a scheduling order , o n March 23, 202 2 , and March 25,

202 2 , Father and Mother , through counsel, filed their respective pre - trial

memorand a which included , in part, the names of witnesses to be called and
an analysis of the custody factors delineated in 23 Pa.C.S.A. § 5328(a)

. For
reasons unspecified in the record, the court held a conference and not an evidentiary hearing on March 30, 2022, which resulted in the interim order
dated March 30, 2022 (“ interim order”)

. The trial court docket reveals that
no record was made of the March 30, 2022 proceeding

. The interim order modified the original order by permitting either party , when Child was in the weekly custody of the other , to exercise custody for two

hours after school until 6:00 p.m. on two separate occasions during the week
and to pick Child up from school on those occasions. With respect to Mother’s
request that the court suspend Father’s travel with Child to Italy until age ten , the order provided that neither party shall travel with Child “until the [s] tatusJ

- A12003

- 23

- 4

-

hearing on April 13, 2022.” 2 Interim Order, 3/30/22, at ¶ 6. The terms of

the original order otherwise remained in effect.

P rior to the scheduled status hearing, on a date not revealed in the
record, Father submitted a proposed order to travel with Child to Italy from
August 24, 2022, until September 7, 2022.

The trial court held the status conference with the parties’ counsel as
scheduled , during which it signed the proposed order allowing Father to travel
to Italy with Child from August 24, 2022, until September 7, 2022. The April
13, 2022 order (“final order”) also directed Mother to provide Father with

Child’s U.S. passport within fifteen days; directed Father to provide copies of
his driver’s license, green card, and passport to be kept on file with the trial

court ; and it set forth the itinerary for the proposed trip. Mother timely
appealed pro se from the final order, which this Court docket ed at 1012 EDA

2022.
Thereafter, the parties filed the following pleadings which gave rise to

the order which is the subject of this appeal (also referred to as “subject
order”)

. On June 3, 2022, Father filed an emergency petition incorporating
two requests , one for contempt of the final order and t he other t o modify the

_________________ __________ ______ ____ _______

2 Mother , acting pro se , filed a notice of appeal from the interim order, which this C ourt docketed at 1174 EDA 2022. By order filed on June 21, 2022, we quashed the appeal as interlocutory

.J

- A12003

- 23

- 5

-

final order. At the time Father filed these petitions, Mother’s appeal a t 1012

EDA 2022 remained pending

. Father asserted t hat Mother had contravened the final order by failing
to provide Child’s passport. In addition, Father requested that Child’s

two

- hour visits with the noncustodial parent be eliminated . He alleged that

those visits ha d caused Child “extreme distress” and confusion “ about who is
picking him up [from school] and where he will be staying in the evening.”
Emergency Petition to Modify, 6/3/22, at ¶ 5(b)( xii)

- (xiii). Father requested
that the court modify the final order by returning to an alternating weekly
custody schedule

. On August 11, 2022, Mother filed an amended answer to Father’s
emergency petition for contempt, wherein she asserted, inter alia , that the
passport issue was moot due to this Court’s order in her appeal at 1012 EDA

2022

. Indeed, i n an order filed on June 22, 2022, this Court granted Mother’s
request for a stay of the final order and directed Father to post $50,000 .00 as
security for Child ’s return from Italy on September 7, 2022. A fter Father
complied with that order , this Court removed the stay on July 20, 2 022, and
directed Mother to provide Child’s passport to Father no later than August 1,

2022

. 3 As such, Father and Child had returned to the United States from Italy

_________________ __________ ______ ____ _______

3 This Court “o rdered Father to post $50,000.00 as security, noting that he admitted making threats in the past that he would abscond with Child to Italy ,” which would be removed when Father “informed us that he had posted (Footnote Continued Next Page)J

- A12003

- 23

- 6

-

by the time Mother filed her amended answer to Father’s above

- described

emergency contemp t petition

. On October 28, 2022, while her appeal at 1012 EDA 2022 remained
pending, Mother filed an amended answer to Father’s emergency petition for

modification of the final order and counterclaim. Mother alleged that it was in

Child’s best interest to modify the custody schedule by alternating custody
between the parties on a 2

- 2

- 3

- day basis

. Further, she alleged that Father , at a time unspecified in record, had proposed a nother trip with Child to Italy

in December of 2022

. She also renewe d her request that Child’s international
travel be suspended until he is ten years old. Mother also averred that

Father’s recent trip to Italy with Child “was a dry run for Father to retain Child

_________________ __________ ______ ____ _______ security.” Cassani v. Karniak , 289 A.3d 85 , 2022 Pa. Super. Unpub. LEXIS 2762 * *2

- 3 (Pa. Super. filed November 22, 2022) (unpublished memorandum). We directed that “ Father could move for return of security upon Child’s return to the United States with Father on September 7, 2022. ” Id. at *3. Thereafter , Father posted a $50,000.00 bond in the [trial] court. On July 20, 2022, this Court removed the stay of the April 13, 2022 order and reiterated that Father could move for return of security upon Child’s return to the United States with Father on September 7, 2022.
On September 20, 2022, Father filed an application in this Court seeking return of security. Father averred that Child and Father returned to the United States on September 7, 2022. Mother did not file an answer to Father’s application. On Oct ober 31, 2022, this Court entered an order directing return of all security posted by Father.

Id.J

- A12003

- 23

- 7

-

in Italy. . . .” Amended Answer and Counterclaim, 10/28/22 , at ¶ 8(a)
(emphasis in original).

The court scheduled a “protracted hearing ” on the above

- described
petitions for November 22, 2022

. 4 See Order, 11/7/22. Mother timely filed

a pre - trial statement , but Father did not file the same

. Critically, t his hearing
again occurred off

- the

- record , a lthough Mother asserts that it was conducted

via Zoom

. See Mother’s Brief at 14 (unpaginated). To be clear, no transcript

or record of these proceedings or the testimony , if any, offered therein is
present in the certified record.
By order dated and entered on November 22, 2022, the trial court

dismissed Father’s emergency contempt petition as moot. Further, t he court

denied the parties ’ cross - petition s to modify the final order. Moreover, the

c ourt granted Father’s new request to travel with Child to Italy in December

of 2022

. T he order provided that Child’s “passport may be retrieved from the
[c] ourt on Monday, December 19, 2022 by a [c] ourt [o] rder. Thereafter, said
passport shall be returned to the [c] ourt upon completion of the trip. The
parties shall have the passport of [Child] renewed before February 14, 2023. ”
Order, 11/22/22, at ¶ 5.
It is important to note that, on the same date the trial court issued the
subject order, this Court filed its memorandum in Mother’s appeal at 1012

_________________ __________ ______ ____ _______

4 Although the order listed the hearing as a “protracted hearing,” it scheduled the hearing to commence at 1:00 p.m. for “1 hour .” Order, 11/7/22.J

- A12003

- 23

- 8

-

EDA 2022, wherein we ordered that the appeal be dismissed as moot. See

Cassani , supra

. The panel concluded, “Mother’s arguments boil down to the

thesis that the [trial c] ourt’s order was an abuse of discretion because Father
intended to abscond to Italy with Child and never return. Father, however,
returned from Italy to the United States with Child on September 7, 2022, the
date specified in the [final] order.” Id.
On November 23, 2022, Mother , acting pro se , filed a notice of appeal
from the trial court’s November 22, 202 2 order, along with a concise
statement of errors complained of on appeal

. On December 6, 2022, Mother

filed in the trial court a motion to stay t he subject order, which the court
granted by order entered on December 13 , 2022

. Specifically, the order
provided , “the order of November 22, 2022 is stayed pending disposition of
the appeal [before the Superior Court] docketed at no. 2961 EDA 2022 [the

i nstant appeal] .” See Order, 12/13/22.

On December 19, 2022, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925( a ) , wherein it asked this Court to vacate the subject order and

remand the case on the basis that it lacked jurisdiction over the subject matter
pursuant to Pa.R.A.P. 1701 ( Effect of Appeal Generally)

. On appeal, Mother raises eight issues for review , as follows

. 5

I. Has the trial court erred and/or abused its discretion by ignoring Pa.R.A.P. 1701 , which states, inter alia , “ E xcept as

_________________ __________ ______ ____ _______

5 We have re - ordered Mother’s issues in her statement of questions involved in her brief for ease of disposition.J

- A12003

- 23

- 9

- otherwise prescribed by these rules, after an appeal is taken or review of a quasi

- judicial order is sought, the trial court or other government unit may no longer proceed further in the matter , ” whereas in this case, the court to deny the fact t hat the custody matters under docket no. 1012 EDA 2022 have not been relinquished/remitted and the record was scheduled to be remitted on December 22, 2022, and still proceeded with the November 22, 2022 hearing?

II. Has the trial court erred and/or abused its discretion by failing to consider the alternative [to Child going to Italy in December of 2022] : the visits with the paternal relatives to visit Child in the United States, given Mother’s concern of parental abduction to Italy, and not consideri ng Mother’s New Year’s Eve 2022 and New Year’s Day 2023 [custodial award and her planned] celebration with Child?

III. Has the trial court erred and/or abused its discretion by ignoring the fact that Father failed to submit the required pretrial statement but still used exhibits during the hearing in order to justify his suggested travel to Italy in December 2022?

IV. Has the trial court erred and/or abused its discretion by ignoring any and all requests for relief in the amended answers with counterclaim and pret rial statement as requested relief was in Child’s best interest pursuant to 23 Pa.C.S.A. § 5328(a)?

V. Has the trial court erred and/or abused its discretion by issuing the subject order which was contrary to the record and testimony of the parties at the Zo om hearing and contrary to the best interest of Child pursuant to 23 Pa.C.S.A. § 5328(a)?

VI. Has the trial court erred and/or abused its discretion by not allowing ample time between the conference scheduled on November 7, 2022, and a one

- hour “protracted hearing” via Zoom call scheduled on November 22, 2022 to allow Mother to adequately prepare a nd subpoena appropriate witnesses for the hearing?

VII. Has the trial court committed an error of law and/or abuse of discretion by providing that it “resolved any outstandingJ

- A12003

- 23

- 10

- issues ,” which contradicts the court ’ s statements at the hearing of taking under adv isement requests and changes to custody order provisions requested in Mother’s counterclaim and pretrial statement ?

VIII. Has the trial court violated Pa.R.C.P. 1915.10(b)(2) by ignoring Mother ’ s raised concerns of Child’s risk of international abduction?

Mother’s Brief at 1

- 2 (unpaginated) (cleaned up)

. 6
In her first issue, Mother , like the trial court , requests that this Court

vacate the subject order and remand the case . Specifically, she asserts that
by appealing the final order to this Court, docketed at 1012 EDA 2022, the
trial court was divested of original jurisdiction to issue the subject order

. Further, Mother asserts that , inasmuch as the record at 1012 EDA 2022 was
not remanded, the trial court’s jurisdiction over the final order had not

revested on November 22, 2022

. Id. at 7

- 8 (unpaginated). We dis agree.
It is well

- settled that the “ lack of subject

- matter jurisdiction can never
be waived ; it may be raised at any stage in the proceedings by the parties

or by a court o n its own motion.” Commonwealth v. Harris , 230 A.3d 1124 ,
1126 (Pa. Super. 2020 ) (emphasis in original) (citation omitted)

. Further,

_________________ __________ ______ ____ _______

6 With respect to Mother’s eighth issue, she did not assert an error regarding it in her concise statement of errors complained of on appeal. Therefor e, Mother’s eighth issue is waived. See In re M.Z.T.M.W. , 163 A.3d 462, 466 (Pa. Super. 2017) ( citing City of Philadelphia v. Lerner , 151 A.3d 1020, 1024 (Pa. 2016) ) (“ With respect to issues not included in a concise statement, our Supreme Court has instructed that this Court has no discretion in choosing whether to find waiver. Waiver is mandatory, and this Court may not craft ad hoc exceptions or engage in selective enforcement.”)

.J

- A12003

- 23

- 11

-

“ [j] urisdiction is purely a question of law; the appellate standard of review

is de novo , and the scope of review plenary. ” Id. (citation omitted).

This Court has explained :
Under Pennsylvania Rule of Appellate Procedure 1701(a) , “ the filing of a notice of appeal divests the trial court of jurisdiction. ” Commonwealth v. Cooper , 611 Pa. 437, 27 A.3d 994, 1005 (Pa. 2011 )

. Except in situations not applicable here, Rule 1701(a) dictates that, “ after an appeal is taken

. . . the trial court

. . . may no longer proceed further in the matt er. ” Pa.R.A.P. 1701

.

. . . A Superior Court decision and order of remand with instructions,

. . . does not automatically and immediately revest a trial court with jurisdiction, nothwithstanding this Court ’ s use of the phrase

“ jurisdiction relinquished ” in the decision. Procedurally, our decisions are not necessarily the final word on appeal. Thus, our phraseology is actually shorthand for, “ jurisdiction relinquished, if and wh en remand becomes appropriate by an operation of law. ”
Regarding the timing of a remand to a lower court, the appellate rules provide, “ Remand is stayed until disposition of: (1) an application for reargument; (2) any other application affecting the order; or (3) a petition for allowance of appeal from the order. The court possessed of the record shall remand 30 days after either the entry of a final order or the disposition of all post

- decision applications, whichever is later. ” Pa.R .A.P. 2572(b)

.
We have construed Appellate Rule 2572 as setting the earliest possible date for remanding a record to the trial court. “ Quite simply, the prothonotary may remand the record any time after thirty days have passed from the Superior Court's judgment. ” Commonwealth v. Sisneros , 692 A.2d 1105, 1109 (Pa. Super. 1997)

. Harris , 230 A.3d at 1126

- 1127 (emphasis in original)

. Instantly, it is undisputed that this Court filed its memorandum in 1012

EDA 2022 on November 22, 2022, the same date that the trial court held theJ

- A12003

- 23

- 12

-

Zoom hearing and issued the subject order. As such, the record had not been

remanded on November 22, 2022

. See Harris , supra ; see also Pa.R.A.P.

2572. However , we disagree that the prior appeal divested the trial court of
jurisdiction with respect to the subject order.

The Rule provides, in relevant part:
Rule 1701. Effect of Appeal Generally
(a) General rule.
-- Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.

. . . (c) Limited to matters in dispute.
-- Where only a particular item, claim , or assessment adjudged in the matter is involved in an appeal , or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the trial court or other government unit from proceeding further with only such item , claim , or assessment, unless otherwise ordered by the trial court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant

.

. . .
Pa.R.A.P. 17 01 (a), (c) (emphasis added)

. As stated above, the panel in Mother’s appeal at 1012 EDA 2022

determined that the sole matter in dispute was whether the trial court abused
its discretion by permitting Father to travel to Italy with Child from August 24,
2022, to September 7, 2022 , based on her allegation that Father intended to
abscond to Italy with Child and never return

. See Cassani , supra

. BecauseJ

- A12003

- 23

- 13

-

Father had returned from Italy to the United States with Child on September
7, 2022, the panel dismissed that appeal as moot. Id.
However, on November 22, 2022, the trial court needed to resolve

Father ’ s new proposal to travel with Child to Italy again in December of 2022

. In addition, the trial court needed to resolve , inter alia , the parties ’ dispute

r egarding which custody schedule was best for Child , alternating between

Mother and Father on a 2

- 2

- 3 basis or on weekly basis

. Therefore, the issues

before the trial court were different than those on appeal at 1012 EDA 2022 , and the court was not divested of jurisdiction to rule on them. We conclude

Mother’s first claim is without merit

. 7
Having concluded that the trial court was not divested of jurisdiction in
the underlying matter, we now turn to Mother’s substantive clai ms. In her
second issue, Mother asks this Court to consider whether the trial court abused

its discretion by granting Father’s proposed trip to Italy with Child again in

December of 2022 , bearing in mind her allegation that he still planned to

abscond wit h Child

. In her third issue, Mother requests that we review

whether the court abused its discretion by permitting Father to introduce
exhibits in support of his proposed trip during the November 22, 2022 hearing

.

_________________ __________ ______ ____ _______

7 I t is important to note that, unlike the procedural posture in Mother’s appeal at 1012 EDA 2022, the trial court stayed the subject order on December 13, 2022, and there is no evidence in the record that Father’s proposed trip to Italy with Child in December of 2022 occurred. Therefore, the instant appeal is not moot.J

- A12003

- 23

- 14

-

In her fourth and fifth issue s , Mother requests that we review whether the

court abused its discretion in denying her request for C hild’s custody schedule

to alternate on a 2

- 2

- 3

- day basis. In her sixth and seventh issues, Mother
questions whether the court permitted her to present he r witnesses in support
of her allegations.
Generally, these claims implicate the trial court’s November 22, 2022

order , which concerned various aspects of the parties’ custody of Child. Our
scope and standard of review in child custody matters is well

- es tablished.

[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. . . . However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. . . . Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual co nclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.
R.M.G., Jr. v. F.M.G. , 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard v. Baker , 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,
[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.
The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.J

- A12003

- 23

- 15

-

R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court’s
c onclusions. Ketterer v. Seifert , 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T. , 87 A.3d 818, 820 (Pa. Super. 2014).

As the foregoing prece de nt makes clear, our principal responsibility in
the context of custody matters is to ensure that the trial c ourt’s findings and
rulings are supported by competent evidence. Id. Our ability to do so,
however, is largely dependent upon the state of the certified record. Instantly,
the incomplete nature of the certified record hamstrings our ability to conduct

o ur mandated review. Specifically, the November 22, 2022 hearing, which
immediately preceded the trial court’s entry of the underlying order in this
appeal , was conducted as an off

- the

- record video conference. As detailed
above, we discern that no record of these proceedings, or the evidence and
testimony adduced therein, was created by the trial court.
Because the subject hearing was inexplicably conducted off the record,
we are unable adequately to review Mother’s second through seventh issues
on appeal. Upon thorough review of Mother’s arguments, the parties’
pleadings, and the court’s orders in the certified record, there is no indication

that the trial court held an appropriate evidentiary hearing

. Furthermore, we
cannot assess the findings of the tr ial court to ensure that its determinations
are supported by competent evidence.J

- A12003

- 23

- 16

-

Pennsylvania Rule of Appellate Procedure 1926(a) provides that, “[i]f
any difference arises as to whether the record truly discloses what occurred
in the trial court, the difference shall be submitted to and settled by th at court
after notice to the parties and opportunity for objection, and the record made

to conform to the truth.” Pa.R.A.P. 1926(a). In past instances , this Court has
relied upon Rule 1926 to vacate and remand for further proceedings due to
the incompleteness of records created in the court below. See Supko v.
Monoskey , 461 A.2d 253, 257

- 258 (Pa. Super. 19 83) ( vacating a purported
custody order and remanding for further proceedings where an “incomplete”
record hampered this Court’s ability to conduct meaningful appellate review).
Accordingly, we vacate the November 22, 2022 custody order and

remand the cas e to the trial court to schedule prompt ly a full evidentiary
hearing of the parties’ cross

- petitions to modify . On remand, we direct that
the trial court prohibit Father from international travel with Child prior to the
full evidentiary hearing and the co urt’s new custody order arising therefrom. 8

Order vac a ted. Appellant’s Application for Relief denied as moot. Case
remanded. Jurisdiction relinquished.
Judge McLaughlin joins this Memorandum.
Judge Nichols files a Dissenting Memorandum.

_________________ __________ ______ ____ _______

8 Mother filed pro se an application requesting that this Court “ take into consideration that transcripts are una vailable ” for review. Application for Relief, 5/12/23, at 1. Based on this disposition, Mother’s application is moot.J

- A12003

- 23

- 17

-



### Date: 10/12/2023