Attorneys new to family court are often surprised that the Rules of Evidence are not always strictly followed, Rules of Civil Procedure are sometimes ignored, statutes are not always strictly applied and procedural oversights are not always a big deal. While defenders of these practices will argue that they are necessary to promote judicial efficiency in an already overwhelmed system, this may soon be a thing of the past.
A string of recently published Superior Court opinions seem to send a strong message to the family court bench and bar: Follow the rules.
In A.M.S. v. M.R.C., 2013 Pa. Super. 156 (June 28, 2013), the Superior Court strictly interpreted and applied the 2010 amendments to the Child Custody Act. The issue was whether the mother should be permitted to relocate from Pennsylvania to New York with the parties' minor child. In 2010, the act was substantially amended and now requires a trial court to consider 10 factors in deciding whether or not a parent can relocate with a child and 16 factors in making an award of custody. Also, Section 5323 of the act provides that when a trial court makes an award of custody, it "shall delineate the reasons for its decision on the record in open court or in a written opinion or order."
This section, for the first time, put a requirement on a trial judge to explain his or her decision when a custody order was entered. Prior to that, judges could issue a one-line order, and litigants and attorneys often did not know the basis for the judge's decision (unless and until they appealed to the Superior Court).
In A.M.S., the trial court issued an order simply permitting the relocation. The Superior Court vacated the order, in part, because the trial court did not delineate the reasons for its decisions on the record or in a written opinion. The trial court relied on another recent opinion, C.B. v. J.B., 2013 PA. Super. 92 (April 22, 2013), which held that a trial court must articulate its reasons for a custody determination and analyze the 16 factors under the Child Custody Act for a custody decision (not a relocation) at the time a decision is made.
In C.B., the court reasoned that an appealing party is left to guess which information the trial court found pertinent and how the evidence informed the court's analysis of the 16 custody factors. Further, the Superior Court noted that, unlike civil and criminal cases (where potential appellants may seek explanations for trial court decisions through post-trial or post-sentence motion), family law matters permit no post-trial practice except through motions for reconsideration.
Therefore, the court in C.B. held that the court must delineate the reasons for custody decisions at or near the time of verdict. The court in A.M.S. extended this holding to relocation cases as well, holding that strict compliance with Section 5323 was necessary, which requires the court to explain its decision at the time the order is entered. However, the Superior Court did not vacate the trial court's order on that basis, since the Superior Court made this mandate prospective.
The trial court's order was vacated, however, because it did not properly consider the mandatory factors in the Child Custody Act. The amendments to the act require a trial court to consider 10 specific factors before deciding whether a party can relocate — two of those factors deal with the mental conditions and any past drug use of the parties and anyone in their household.
In this case, the Superior Court noted that the trial judge briefly addressed the history of drug abuse and physical and mental conditions of the parties but did not consider the history of drug or alcohol abuse of the other members in the mother's household. This was particularly relevant here because the mother proposed to live with her sister and sister's family after the relocation. The Superior Court vacated the order and indicated that "without information on the household members with whom child would be living, at least for some period of time, we cannot conclude that the trial court considered all of the relevant factors."
The court in A.M.S. strictly applied two different sections of the act. The court made clear through A.M.S. and C.B. that trial judges can no longer get away with one-sentence orders granting or denying petitions for custody and simply setting a custody schedule. Instead, they need to carefully analyze each factor articulated in the Child Custody Act, place their analysis on the record or in writing and do so immediately.
In another case, a trial court was reversed for changing a custody order when no petition to modify the order was pending. In G.A. v. D.L., 2013 Pa. Super. 168 (July 3, 2013), the father filed a petition for contempt of a custody order against the mother. The trial court granted the petition and found the mother in contempt and also reinstated a previous custody order. The mother appealed, in part, because the father had failed to file a petition to modify the existing custody order. The Superior Court agreed and vacated the order. The court held that the trial judge modified the custody order by reinstating the previous order notwithstanding the fact that no petition for modification was before the court. Further, the Superior Court noted that the father had not even asked the trial court to modify the order. By doing so, the trial court abused its discretion because neither party had presented a petition to modify and the mother was not able to prepare a case for modification.
The court relied in part on P.H.D. v. R.R.D., 56 A. 3d 702 (Pa. Super. 2012), where another trial court's order was vacated for "clarifying" a custody order when no modification was pending. That case was also a contempt petition in which the trial court modified the order, stating that it was doing so only to "clarify" the order. The message here is that any tweak to a custody order, no matter how small, can only be properly made when a petition to modify the custody order is pending before the court.
In another case, Green v. Green, 2013 Pa. Super. 138 (June 11, 2013), the Superior Court denounced the use of "trial aids" in family law cases. Trial aids are a common tool in family law cases submitted to the court to summarize a party's position, make argument or provide the court with a summary of evidence or calculations. Although the term trial aid seems to have originated in the western part of the state, most family law attorneys use some version of them often.
In Green, the husband filed a petition against his ex-wife to enforce their property settlement agreement. The trial judge ordered both parties to submit trial aids, which were to list the entire marital estate as distributed between the parties, the corresponding values and what transfers had yet to be made in order to effectuate the 50/50 division is property.
Both parties submitted trial aids and appeared for a hearing; however, rather than putting testimony on the record, the court just heard oral argument, although it made clear that the parties could offer testimony if they chose.
The husband never objected to the submission of his ex-wife's trial aid at the time of the argument, but he raised the issue on appeal. Specifically, he argued that the court accepted the wife's trial aid even though it was not entered into evidence. The trial court took the position that the trial aid became part of the record and that it was only because of a clerical error that it was not formally accepted as an exhibit.
The Superior Court affirmed the trial court, but only because the husband waived the issue on appeal by not properly raising it before the trial court. However, in its published opinion, the Superior Court made clear its displeasure with the practice of using trial aids. The court said that "nothing in our Rules of Evidence or Civil Procedure contemplates the use of 'trial aids'" and that "trial aids appear to be used almost exclusively in family law cases. Otherwise, they are creatures unknown. They generally seek to submit to the trial court some admixture of facts and argument as if the documents form an exhibit." The Superior Court went on to explain that the trial aids in this case were composed largely of the parties' arguments (which could have been submitted via written briefs) but that they also contained assertions of fact that lacked evidentiary support in the developed record. Since no testimony was taken or exhibits offered to back up the argument in the trial aids, the court stated that there was no competent record upon which to base the trial court's determination.
The court then pointed to Pennsylvania Rule of Evidence 1006, which could be used, at least in part, to accomplish the same objective as trial aids. Specifically, this Rule of Evidence addresses summarizing voluminous writings when those writings are made available for inspection by the other party.
Although this was perhaps the original intention of trial aids, these unique tools of family law have morphed into something more over the years. Many family law attorneys use trial aids to submit proposed income and support calculations to a trial judge, summarize their argument as it relates to the custody factors in a child custody case and demonstrate what documents are missing in a motion to compel discovery responses.
Continued use of trial aids should be done at an attorney's own peril in the future. The Superior Court has made manifestly clear that, if the issue is properly preserved at the time of trial, a trial court will be reversed if it relies on these trial aids (assuming that the information contained in the trial aid is not supported by the developed record).
These recent cases suggest that the Superior Court intends to ensure that family law attorneys and judges must follow the rules or face a reversal or remand when appropriate. While this may be frustrating to some, it is hard to deny that strict compliance with rules and statutes promote efficiency and predictability, both of which have been historically lacking and much needed in family court. Incidentally, court observers will note that all three of these opinions were authored by Judge David N. Wecht, who practiced what he preached when he sat in family court in Allegheny County.
Andrew D. Taylor is a partner in the family law practice group at Weber Gallagher Simpson Stapleton Fires & Newby, where he represents individuals in all matters of divorce, support and child custody.