DiCicco, M. v. Scott, S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MELISSA DICICCO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SEAN SCOTT : No. 934 EDA 2021
Appeal from the Order Entered April 16, 2021
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No: 0C2000647
MELISSA DICICCO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SEAN SCOTT : No. 1383 EDA 2021
Appeal from the Order Entered June 10, 2021
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No: 0C2000647
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 2, 2022
Melissa Di Cicco (“Mother”) appeals the orders entered April 16, 2021,
and June 10, 2021, which awarded shared legal and physical custody of her
son, M.D.-S. (“Child”), born in June 2017, to his father, Sean Scott (“Father”).
Mother challenges the portions of the orders awarding additional vacation time
with Child to Father during the summer of 2021. After review, we affirm the
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April 16, 2021 order but vacate the June 10, 2021 order, which the trial court
lacked jurisdiction to enter.
Mother and Father were never married but resided together from 2016
until 2020, along with Child and Child’s half-siblings, who are Mother’s children
from a prior relationship. The precise circumstances surrounding the parties’
separation are a source of disagreement in this case, but it is undisputed that
Mother left the parties’ home, of which she was the sole owner, in June 2020.
Mother then traveled with Child to South Carolina, where Child’s half-siblings
were visiting Child’s maternal grandmother. Mother, Child, and Child’s half-
siblings remained in South Carolina, and Father remained in the home Mother
owned. Father had no in-person contact with Child during this time but was
able to speak to Child on the phone.
On July 8, 2020, Mother filed a complaint, requesting shared legal and
primary physical custody of Child. Father filed a petition for emergency relief
on July 17, 2020, averring Mother had “relocated” to South Carolina without
his consent. He further requested that Mother return Child to Pennsylvania,
and that the parties receive shared legal and physical custody.
The trial court held a hearing on Father’s petition for emergency relief
on July 20, 2020. In relevant part, the parties testified that Father was still
living in Mother’s home without permission and had changed the locks. Father
testified that he had been staying in the home because Mother had “not agreed
to any type of custody, hasn’t said when she’s coming back, and is really not
giving me information on what she’s doing with our son.” N.T., 7/20/20, at
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11. Mother explained that she planned to return to Pennsylvania with Child
as soon as Father left her home. Id. at 26. That same day, the court entered
an order denying Father’s petition for emergency relief and creating an interim
custody schedule. The order directed that Mother return to Pennsylvania with
Child by August 15, 2020, and that, upon their return, Father would exercise
partial physical custody of Child every other weekend from Friday at 6:00 p.m.
until Sunday at 6:00 p.m.1 Mother complied, returning to Pennsylvania with
Child, and Father left Mother’s home.
On September 16, 2020, Father filed a petition for expedited relief, in
which he averred that Mother had unilaterally changed Child’s daycare/school
despite lacking sole legal custody. Father requested that the trial court direct
Mother to return Child to his prior daycare/school and clarify that the parties
exercise shared legal custody, since the court did not mention legal custody
in its July 20, 2020 order. Father also filed an answer to Mother’s custody
complaint and a counterclaim on September 18, 2020, requesting shared legal
and physical custody of Child.
Mother filed a petition for special relief on October 19, 2020, responding
to Father’s petition for expedited relief. Mother averred she had not enrolled
Child in a new daycare/school at the time Father filed his petition, but that
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1For reasons that are unclear, two versions of the order appear in the record.
One version, which only appears attached to pleadings, includes an additional
provision directing that Father would “have dinner . . . at least once a week”
with Child during the weeks that he did not otherwise exercise custody. Order,
7/20/20, at 1.
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she did so later because she knew the trial court would not make an immediate
decision regarding schooling and had no “other viable option[.]” Petition for
Special Relief, 10/19/20, at 3-4. Mother requested that the court award her
sole legal custody and permit Child to remain at his new daycare/school. On
November 2, 2020, Father filed an amended complaint, also requesting sole
legal custody. He based this request on Mother’s alleged uncooperativeness,
as demonstrated by her unilateral daycare/school decision, and on her alleged
failure to negotiate the resolution of the custody dispute in good faith.
The trial court conducted a full custody hearing on November 10, 2020.
Relevantly, the parties testified regarding Mother’s decision to travel to South
Carolina with Child and how Child was faring under the July 20, 2020 interim
custody order. Mother testified that Father provided inadequate supervision
for Child while the parties were living together, resulting in safety concerns,
and that he yelled at her and Child and used profanity. N.T., 11/10/20, at 24-
26. Mother described an exchange during which she informed Father that he
“was scaring” her, and he replied that she “should be scared.”2 Id. at 26.
She stated that she decided to separate from Father because she was unable
to work from home effectively during the COVID-19 pandemic due to Father’s
inadequate supervision, which forced her to “keep coming back and forth,
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2Mother testified at a later hearing that this exchange occurred in 2018. N.T.,
4/1/21, at 17.
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going up and down the stairs,” to make sure Child was safe.3 Id. at 28-30,
38-42. Regarding the interim custody schedule, Mother testified that Child
sometimes returned from Father’s custody hungry, had trouble falling asleep,
or had night terrors. Id. at 23.
Father countered that he has been involved in caring for and supervising
Child since birth, which included serving as Child’s primary caretaker during
the summers of 2018 and 2019. Id. at 81-82. Further, he discussed instances
when he had adjusted his parenting practices at Mother’s request. Id. at 117-
18. Turning to the circumstances leading up to the parties’ separation, Father
testified that Mother had expressed concern it was difficult to work from home
during the COVID-19 pandemic because it was “noisy,” and that she was afraid
she would lose her job. Id. at 94. Mother proposed enrolling Child in daycare,
but Father insisted on waiting until two weeks after the daycare had reopened
to ensure it was operating according to COVID-19 safety protocols. Id. Father
explained this disagreement culminated in an incident during which Mother
attempted to enroll Child in daycare without his permission, and he followed
Mother to the daycare to prevent the enrollment. Id. at 95. Mother’s attempt
proved unsuccessful because the daycare would not enroll Child without the
permission of both parents. Id. at 96. Father recalled that Mother informed
him two days later she would be taking Child to visit a friend but then traveled
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3Father is employed at a school and has summers off. N.T., 11/10/20, at 80.
Accordingly, Mother relied on Father to supervise Child during the summer of
2020 while she was working from home. Id. at 24-30.
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to South Carolina instead. Id. at 95-97. As for the interim custody schedule,
Father denied that Child had been exhibiting excessive or unusual behavioral
issues, suggesting he was merely “a three[-]year[-]old boy” who sometimes
“doesn’t want to do exactly what you tell him to do.” Id. at 85.
On November 13, 2020, the trial court entered an order awarding the
parties shared legal and physical custody of Child. The order directed Mother
would have physical custody of Child from Monday mornings until Wednesday
mornings, while Father would have custody from Wednesday mornings until
Friday mornings. The order directed the parties would alternate custody each
weekend from Friday morning until Monday morning.4 The order also provided
that each party would have two weeks of nonconsecutive vacation with Child
each summer, except for the summer of 2021. Father would have five weeks
of vacation during the summer of 2021, which he could take consecutively.
The order did not include any provision indicating Mother would have vacation
with Child during the summer of 2021. Finally, the order provided Child would
continue to attend Mother’s chosen daycare/school for the rest of the school
year, after which the parties would need to reach an agreement regarding
Child’s schooling. The court entered a separate order that same day detailing
its findings of fact.
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4 The order explained that morning custody exchanges would occur either at
“the time that school, daycare, or camp would normally begin on the day of
the transition or if the child is not in school or camp then at transfer [sic] shall
be at 9:00 a.m.” Order, 11/13/20, at 2.
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Mother timely filed a notice of appeal on December 4, 2020, along with
a concise statement of errors complained of on appeal. Mother also filed a
motion for reconsideration on December 4, 2020, in which she averred the
trial court erred and abused its discretion by failing to place adequate weight
on certain alleged facts, misconstruing certain evidence, and awarding Father
additional vacation time with Child during the summer of 2021, among other
things. The court entered an order on December 9, 2020, expressly granting
reconsideration. Father filed an answer to Mother’s motion on December 14,
2020, contending that Mother was merely dissatisfied with the court’s custody
award and attempting to retry the case. Mother filed praecipes to strike her
notice of appeal in the trial court on December 15, 2020, and in this Court on
January 7, 2021.
Additionally, Mother filed a motion to supplement the record on January
13, 2021. Mother’s motion is listed on the docket sheet but does not appear
in the record this Court received on appeal, so it is not clear what exactly she
wished to supplement the record with. In response to Mother’s motion, Father
filed an answer on February 7, 2021, and a motion to strike on February 11,
2021. Father contended Mother’s motion was an improper motion for post-
trial relief and requested that the trial court sanction her. The court heard
argument on March 11, 2021, after which it entered an order in response to
Mother’s motion for reconsideration reopening the record for a supplemental
custody hearing. The order also dismissed Mother’s motion to supplement,
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granted Father’s request to strike the motion, and denied Father’s request for
sanctions.
The supplemental hearing took place on April 1, 2021. In relevant part,
Mother endeavored to present evidence that she was fearful of Father at the
time she left home and traveled with Child to South Carolina. Mother testified
that Father displayed “explosive reaction[s]” during the parties’ time together,
which included “throwing things,” cursing at her, and “breaking items.” N.T.,
4/1/21, at 13-14. She mentioned instances during which Father “put a hole
in the wall[,]” threw a mason jar across the room, and berated her, claiming
that she was responsible for his behavior. Id. at 14-15. In support of these
allegations, Mother presented a copy of a text message that Father sent her
in 2019, in which he apologized for “making you guys feel scared” by “yelling
and throwing and banging things.” Id. at 16-17; Exhibit M-3.1.
Father responded by testifying he had never hit Mother or Child. N.T.,
4/1/21, at 63-64. He maintained that Mother’s allegations did not describe
typical behaviors of his, but related to “one off instances years apart” when
his “frustration . . . boil[ed] up[.]” Id. at 96. Father contended that he acted
as the disciplinarian in the parties’ relationship, and that Mother “doesn’t really
like to do discipline at all.” Id. at 64. He stated he disciplined Child by putting
him in timeout and raising his voice. Id. at 64-65. Father contrasted this
with Mother’s style of discipline by presenting text messages from Mother in
which she admitted locking Child in his room and “mistreating” her children
by “mak[ing] them feel bad[.]” Id. at 47-48, 54-55, 69-70, 81-83; Exhibit F-
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1.5 Father argued both he and Mother had exhibited parenting deficits, and
that Mother’s habit of “talk[ing] down” to her children was “just as bad and
damaging” as “me throwing something and raising my voice[.]” N.T., 4/1/21,
at 83.
On April 16, 2021, the trial court once again entered an order awarding
the parties shared legal and physical custody, with terms largely identical to
those of the November 13, 2020 order. Notably, however, the April 16, 2021,
order provided that Mother could take two consecutive weeks of vacation
during the summer of 2021. The court further entered two separate orders
that same day with findings of fact supporting its decision. Mother timely filed
a notice of appeal, along with a concise statement of errors complained of on
appeal, on May 12, 2021. This Court assigned Mother’s appeal Superior Court
docket number 934 EDA 2021.
Importantly, Mother filed an emergency motion for stay pending appeal
in the trial court on May 13, 2021, requesting that the court delay enforcement
of its 2021 summer vacation schedule. The court entered an order on June
10, 2021, purporting to grant Mother’s motion in part and deny it in part. In
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5 The text message in which Mother admits to “mistreating” her children is not
in the record this Court received on appeal. Nonetheless, it appears Mother’s
counsel did not object to the message, and the trial court admitted it at the
conclusion of the hearing. N.T., 4/1/21, at 69-70, 97. Mother included the
text message in her reproduced record filed at 1383 EDA 2021, and, as there
is no dispute regarding its authenticity, we have considered it. Reproduced
Record (1383 EDA 2021) at 374a; see Commonwealth v. Holston, 211 A.3d
1264, 1276 (Pa. Super. 2019) (en banc) (citing Commonwealth v. Brown,
52 A.3d 1139, 1145 n.4 (Pa. 2012)).
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reality, the court did not order that its summer vacation schedule be stayed
but directed that Father could take no more than two weeks of his five weeks
of vacation consecutively.6 Mother timely filed a second notice of appeal on
July 12, 2021,7, 8 which this Court assigned Superior Court docket number
1383 EDA 2021. We consolidated Mother’s appeals sua sponte on August 3,
2021.
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6 Meanwhile, Mother filed an emergency application for stay regarding the
summer vacation schedule in this Court on June 9, 2021. This Court denied
Mother’s application on June 11, 2021. Mother filed an emergency application
for reconsideration of this Court’s order on June 21, 2021, which this Court
denied on June 22, 2021.
7 Father contends Mother’s second notice of appeal was untimely. Father’s
Brief (934 EDA 2021) at 23. The thirty-day appeal period ended on July 10,
2021, which was a Saturday. Accordingly, Mother timely filed her notice of
appeal on Monday, July 12, 2021. See Pa.R.A.P. 903, Note (observing that
our Rules of Appellate Procedure incorporate 1 Pa.C.S. § 1908, “relating to
. . . the omission of the last day of a time period which falls on Saturday,
Sunday or legal holiday.”).
8 The record does not contain a copy of a concise statement filed with Mother’s
second notice of appeal as our Rules of Appellate Procedure require. See
Pa.R.A.P. 1925(a)(2)(i) (“In a children's fast track appeal . . . [t]he concise
statement of errors complained of on appeal shall be filed and served with the
notice of appeal.”). The docket sheet indicates, curiously, that Mother filed a
concise statement on June 12, 2021, a month before her notice of appeal.
Regardless, even if Mother failed to file a concise statement, her failure would
not warrant quashing or dismissing this appeal, as it did not cause prejudice.
See In re K.T.E.L., 983 A.2d 745, 747-48 (Pa. Super. 2009) (holding, “the
failure of an appellant in a children’s fast track case to file contemporaneously
a concise statement with the notice of appeal . . . will result in a defective
notice of appeal[,]” with the disposition of the defective appeal to be decided
on a case by case basis, and declining to quash or dismiss the appeal in that
case because there was no prejudice).
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Mother’s appeals present interrelated challenges to the portions of the
April 16, 2021, and June 10, 2021 orders awarding Father additional vacation
time with Child during the summer of 2021. Before discussing the merits of
Mother’s appeals, we must address two preliminary issues: (1) whether both
appeals are moot given that the summer of 2021 has already ended and (2)
whether the trial court had jurisdiction to enter the June 10, 2021 order after
Mother had filed a notice of appeal.
First, we consider whether Mother’s appeals are moot, an issue which
the parties address in their briefs filed at both Superior Court docket numbers.
As we have explained, “an actual case or controversy must exist at all stages
of the judicial process, or a case will be dismissed as moot. . . . 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). This general rule is subject to
several exceptions. Relevant to this appeal, we may decide an otherwise moot
issue if it is “capable of repetition and apt to elude appellate review[.]” Id.(citations omitted).
While it is true that the summer of 2021 is already over, and we could
not enter an order awarding Mother increased custody during the summer of
2021 even if we agreed with her arguments, we conclude that we may review
these appeals. The appeals present an issue that is capable of repetition, as
the trial court might enter another unequal award of summer vacation time in
the future. Further, because the court may enter its summer vacation award
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shortly before the summer begins, and because of the time it takes for an
appeal to proceed to its conclusion, the issue is apt to evade appellate review.
We conclude, therefore, that these appeals meet an exception to the mootness
doctrine, and that we need not dismiss them.
We next consider whether the trial court possessed jurisdiction to enter
the order of June 10, 2021. The parties debate this issue in their briefs filed
at 1383 EDA 2021. Our Rules of Appellate Procedure provide that a trial court
may not generally “proceed further” in a case once a party has filed a notice
of appeal. Pa.R.A.P. 1701(a). There are various exceptions to this rule, which
include the following:
(b) Authority of a trial court or other government unit after
appeal.--After an appeal is taken or review of a quasijudicial
order is sought, the trial court or other government unit may:
(1) Take such action as may be necessary to preserve the status
quo, correct formal errors in papers relating to the matter, cause
the record to be transcribed, approved, filed, and transmitted,
grant leave to appeal in forma pauperis, grant supersedeas, and
take other action permitted or required by these rules or otherwise
ancillary to the appeal or petition for review proceeding.
(2) Enforce any order entered in the matter, unless the effect of
the order has been superseded as prescribed in this chapter.
(3) Grant reconsideration of the order which is the subject of the
appeal or petition . . . .
***
(4) Authorize the taking of depositions or the preservation of
testimony where required in the interest of justice.
(5) Take any action directed or authorized by an appellate court.
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(6) Proceed further in any matter in which a non-appealable
interlocutory order has been entered, notwithstanding the filing of
a notice of appeal or a petition for review of the order.
(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. 1701(b)-(c).
Here, the trial court entered its order of June 10, 2021, in response to
Mother’s motion requesting a stay pending appeal of the April 16, 2021 order.
While the court purported to grant Mother’s motion in part and deny it in part,
the order did not grant a stay. Instead, the order slightly amended the prior
order of April 16, 2021, by indicating that Father could take no more than two
weeks of his five weeks of vacation during the summer of 2021 consecutively.
This was a substantive change to the prior order made after Mother filed her
notice of appeal, relating to the same issue that Mother was appealing, at a
time when no modification petition was pending. Thus, none of the exceptions
enumerated in Rule 1701 were applicable, and the court lacked jurisdiction to
enter the June 10, 2021 order, on appeal at 1383 EDA 2021. We vacate that
order and limit our review to the April 16, 2021 order on appeal at 934 EDA
2021. See Mumma v. Boswell, Tintner, Piccola & Wickersham, 937 A.2d
459, 465-66 (Pa. Super. 2007), reargument denied (Jan. 10, 2008), appeal
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denied, 960 A.2d 456 (Pa. 2008) (vacating the trial court’s order because the
court was without jurisdiction to enter it pursuant to Pa.R.A.P. 1701(a)).
Mother raises the following issues for our review in her brief filed at 934
EDA 2021:9
1. Did the trial court err and abuse its discretion when it granted
Father five weeks of exclusive custody in summer 2021—which
translates to Father having 61 days of custody to Mother’s 16
days, where that grant cannot be reconciled with the trial court’s
instruction that “the parties shall have shared physical custody,”
(emphasis supplied) in the best interests of the minor child, or the
conclusion that the five weeks when Father did not have custody
in summer 2020 was “to the detriment of the child’s stability[?]”
2. Did the trial court err and abuse its discretion by entering an
Order that punished Mother—not based on consideration of what
was “in the best interests” of the 4[-]year-old child—where its
Order is inconsistent with the trial court’s Order of July 20, 2020,
that Mother had primary physical custody and would return to
Philadelphia August 15, 2020, based on Father’s representation
that he would vacate Mother’s house on August 14?
3. Did the trial court err and abuse its discretion in rejecting, on
the grounds of “credibility,” all of Mother's testimony about verbal
and physical intimidation by Father, her fear for personal safety,
and anxiety about her job, while disregarding the documentary
evidence that corroborated Mother’s testimony?
Mother’s Brief (934 EDA 2021) at 3-4 (suggested answers omitted).
We review the custody order pursuant to an abuse of discretion standard
of review. V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (quoting
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012)). This Court must defer
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9 Mother filed a separate brief for each of her two appeals. Because we vacate
the order on appeal at 1383 EDA 2021 and limit our review to the order on
appeal at 934 EDA 2021, we focus on Mother’s brief filed at 934 EDA 2021
when considering the merits of her claims.
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to the trial court’s credibility and weight of the evidence determinations, as
the court was able to view and assess the witnesses’ testimony firsthand. Id.We must accept the court’s factual findings if the record supports them, but
we need not accept the court’s deductions or inferences from its findings. Id.When entering a custody order, the trial court must base its decision on
the child’s best interests. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super.
2014) (citation omitted). The factors that courts must consider when ordering
custody are set forth at 23 Pa.C.S.A. § 5328(a), as follows:
(a) Factors.--In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is
a continued risk of harm to the child or an abused
party and which party can better provide adequate
physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
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(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic violence
where reasonable safety measures are necessary to
protect the child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another. A party’s effort to protect a child from
abuse by another party is not evidence of
unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
Upon review of Mother’s brief, we observe she includes three claims in
her statement of questions involved but then divides her argument into eight
sections, one of which she divides into two subsections. This presentation of
Mother’s claims violates Pa.R.A.P. 2119(a), which directs that the argument
section of an appellate brief “shall be divided into as many parts as there are
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questions to be argued; and shall have at the head of each part--in distinctive
type or in type distinctively displayed--the particular point treated therein[.]”
Because Mother’s noncompliance is not a substantial defect, however, and
does not hinder our ability to conduct appellate review, we decline to dismiss
the appeal, and we address the merits of Mother’s claims. See Pa.R.A.P. 2101
(“[I]f the defects are in the brief . . . of the appellant and are substantial, the
appeal or other matter may be quashed or dismissed.”); Krauss v. Trane
U.S. Inc., 104 A.3d 556, 584 (Pa. Super. 2014) (“When deficiencies in a brief
hinder our ability to conduct meaningful appellate review, we may dismiss the
appeal entirely or find certain issues to be waived.”).10
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10 Father argues this Court should dismiss Mother’s appeal because she raises
arguments she did not preserve in her concise statement and attempts to add
new evidence to the case by including two exhibits in her brief and reproduced
record that the trial court did not admit at the hearings. Father’s Brief (934
EDA 2021) at 16-22. Contrary to Father’s contentions, our review indicates
that Mother sufficiently preserved the arguments she raises on appeal in her
concise statement. As for the disputed exhibits, Mother explains that the first
exhibit, included in her brief, was a “demonstrative schedule” displaying the
alleged inequity of the court’s 2021 summer vacation award. Mother’s Reply
Brief (934 EDA 2021) at 5-6. She explains she included the second exhibit,
which was a therapist’s note, with her reproduced record because she believed
the court sustained an objection to it in error, but later chose not to raise that
issue on appeal. Id. at 6 n.3; see N.T., 4/1/21, at 32-33.
Regarding the demonstrative schedule, we are satisfied Mother did not
include it in her brief as a means of introducing new facts into the record, but
as a graphical representation of the trial court’s 2021 summer vacation award,
the substance of which is in the record and undisputed. As a result, we see
no reason to exclude the schedule from our review. We agree with Father,
conversely, that it was improper for Mother to include a therapist’s note that
the trial court did not admit into evidence in her reproduced record, and we
(Footnote Continued Next Page)
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As we explained in our summary of the procedural history of this case,
the trial court entered three orders on April 16, 2021, which included the order
on appeal, as well as two orders containing its findings of fact. The court also
issued an opinion in response to Mother’s concise statement. Relevant to our
analysis here, the court set forth its assessment of the 23 Pa.C.S.A. § 5328(a)
factors in its orders and concluded, based on its assessment, that an award of
shared legal and physical custody would be in Child’s best interest.
Significantly, the trial court found that Father was the parent more likely
to encourage contact between Child and the other parent pursuant to Section
5328(a)(1). The court based this finding on Mother’s lengthy trip to South
Carolina, during which Father had no in-person contact with Child, and on her
contention during her testimony that Father should not have custody of Child
for long periods of time. Order (Findings in Support of Order), 4/16/21, at 3-
4.
The trial court further found that Mother’s attempt to characterize Father
as abusive lacked credibility. Id. at 4-6. The court explained Mother’s reasons
for traveling to South Carolina changed over time, with her initial testimony
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have not considered that note when rendering our decision in this case. See
Brown v. Everett Cash Mutual Insurance Company, 157 A.3d 958, 965
n.6 (Pa. Super. 2017) (observing this Court cannot consider material from
outside the original record when rendering its decision). While Mother should
not have included the note, we do not find this minor transgression warrants
the complete dismissal of her appeal. See Pa.R.A.P. 2101; Krauss, 104 A.3d
at 584.
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on November 10, 2020, focusing on her concern that she might lose her job
and her testimony on April 1, 2021, suggesting she was fleeing Father out of
fear. Id. at 4-6. The court observed that Mother’s allegations of abuse as to
Child were minor; that it was undisputed Father had never hit, attempted to
hit, or threatened to hit Mother; and that Mother never called the police or
involved the child welfare agency due to alleged abuse. Id. at 5. The court
similarly rejected Mother’s assertion that Father provided poor supervision for
Child, observing that she continued to place Child in his care after incidents of
alleged negligent supervision occurred. Id. at 5. Regarding Mother’s motive
for traveling to South Carolina, the court found that Mother left her residence
because Father refused to move out and “the parties engaged in a tit for tat
where Father refused to move out . . . until the parties reached an agreement
for a custody schedule and Mother withheld physical custody of the child from
Father until he moved out[.]” Id. at 4 (unnecessary capitalization omitted).
In addition, the trial court emphasized Child’s need for stability pursuant
to Section 5328(a)(4) and found that Mother contributed to the destabilization
of Child’s life by traveling with him to South Carolina and unilaterally enrolling
him in a new daycare/school after returning to Pennsylvania. Order (Findings
in Support of Order Continued), 4/16/21, at 1-2. The court tied its award of
an expanded summer vacation schedule for Father in 2021 to Child’s need for
stability, explaining:
Father has more availability in the summer due to his work
schedule as an instructional aide in special education . . . . Father
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has typically been the primary caregiver of Child in the summers
and at times was a caregiver for Mother’s two other children from
a prior relationship when they are not in camp.
Since Father has been the primary caregiver of Child in the
summers for his life until 2020, when Mother took the child to
South Carolina during the 2020 summer months, it is in the child’s
best interests to spend extended time with Father in the summer
of 2021. Until 2020, it had always been the child’s experience to
spend his summer with Father and this will provide stability for
the child. Father does not work in the summer and has more
availability to care for the child during that time. It will also mean
for the summer of 2021, the parties may not need childcare. The
child will be too young for[]many camp options other than daycare
in 2021 and spending the majority of these weeks with Father, as
he always had prior to the summer of 2020, will be in his best
interests. Going forward for the summers of 2022 and beyond,
the parties should work together to make decisions about camp
enrollment and to determine a summer custody schedule in light
of Father’s time off from work in the summers.
Id. at 5-6 (unnecessary capitalization omitted).
In her issues combined, Mother attempts to undermine the trial court’s
factual findings. Mother contends the trial court indicated its intent to award
the parties shared physical custody in Child’s best interest but then awarded
Father an expanded vacation schedule during the summer of 2021, which did
not equate to shared physical custody and was not in Child’s best interest.
Mother’s Brief (934 EDA 2021) at 18-20. Mother contends the court failed to
articulate how this unequal schedule was in Child’s best interest, and that the
schedule was contrary to Child’s best interests because it was detrimental to
his stability. Id. at 19-20, 41-44.
Mother further presents argument as to Father’s alleged aggression and
threatening behavior. She asserts Father yelled and cursed while the parties
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lived together, and that he played violent video games in front of Child. Id.
at 28-30. Mother insists she traveled to South Carolina out of fear of Father.
Id. at 33-37. Moreover, she asserts that Father refused to leave the parties’
former home, which she owned, and endangered her job by failing to provide
proper supervision of Child, which made it impossible for her to work from
home during the COVID-19 pandemic. Id. at 25-37. Mother criticizes Father’s
parenting of Child and argues spending time with Father exacerbates Child’s
behavioral issues. Id. at 22-28.
In addition, Mother challenges the trial court’s finding that Father was
the parent more likely to encourage contact between Child and the other
parent pursuant to Section 5328(a)(1). Mother insists Father “imposed” the
unequal 2021 summer schedule on her, which shows his lack of interest in
encouraging her contact with Child. Id. at 21. Mother also insists that Father
caused her to travel to South Carolina and remain there for as long as she did,
because he delayed in leaving her home. Id. Relatedly, Mother contends she
did not “relocate” to South Carolina, as the child custody statute defines that
term,11 but was waiting to return to Pennsylvania until Father left her home,
which she was permitted to do under the July 20, 2020 order. Id. at 37-40.
She argues Father mischaracterized the nature of her trip. Id.
____________________________________________
11 The child custody statute defines “Relocation” as “[a] change in a residence
of the child which significantly impairs the ability of a nonrelocating party to
exercise custodial rights.” 23 Pa.C.S.A. § 5322(a).
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After careful review, we find no merit to Mother’s claims. While Mother
endeavors to present the trial court’s award of additional summer vacation to
Father in 2021 as inconsistent with its conclusion that shared physical custody
would be in Child’s best interest, the effect of this award was that Father and
Child were able to make up for lost time resulting from Mother’s trip to South
Carolina and Father’s interim award of only partial physical custody in the July
20, 2020, order, which limited his time with Child for several months until the
court entered its order of November 13, 2020. If anything, awarding equal
summer vacations in 2021 would be contrary to the court’s shared physical
custody award, because it would result in Child spending far less time with
Father than with Mother over 2020 and 2021. It was also reasonable for the
court to conclude that additional time with Father during the summer of 2021
would provide Child greater stability while transitioning into an equally shared
summer schedule going forward, as Child historically spent his summers with
Father.
Regarding Mother’s allegations of aggressive and threatening behavior
by Father, it was within the trial court’s discretion to reject these allegations
as incredible. V.B., 55 A.3d at 1197. Mother insists it was improper for the
court to reject her allegations on credibility grounds because her testimony
was “unrebutted,” and she proposes the court viewed the case merely as “a
contest . . . based on which parent it found to be more ‘credible[.]’” Mother’s
Brief (934 EDA 2021) at 35-36, 40-43. Mother is incorrect, as Father did rebut
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her allegations of aggressive behavior, denying he ever hit Mother or Child,
and contending Mother’s allegations related to a limited number of instances
“years apart” during which he threw things and raised his voice. N.T., 4/1/21,
at 63-64, 83, 96. Even if Father had not rebutted these allegations, our law
permits a trial court to reject uncontroverted testimony on credibility grounds,
with the caveat that it may not do so arbitrarily. McElwee v. Southeastern
Pennsylvania Transp. Authority, 948 A.2d 762, 774 n.10 (Pa. 2008). We
could not conclude the court’s rejection of Mother’s testimony was arbitrary in
this case, as it provided a thorough explanation of its credibility determination,
summarized above.
Finally, the record supports the trial court’s conclusion that Father is the
parent more likely to encourage contact between Child and the other parent
pursuant to Section 5328(a)(1). As the court observed, Mother traveled with
Child to South Carolina, resulting in Father having no in-person contact with
Child for nearly two months. She also contended in her testimony that it was
inappropriate for Father to have custody of Child for more than three hours at
a time. Mother testified, in relevant part, “I’m extremely concerned over any
amount of time more than three hours. . . . That is what’s best for [Child] for
his father to be there frequently but not just at any length of time.” N.T.,
11/10/20, at 55-56. The record does not indicate that Father displayed similar
hostility to Mother spending time with Child. Finally, while Father may have
alleged at the start of the case that Mother “relocated” to South Carolina, the
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court did not find that she relocated and did not treat this as a relocation case.
We fail to see, therefore, how this provides any reason to disturb the court’s
custody award.
Based on the foregoing analysis, we conclude that the trial court did not
abuse its discretion by awarding Father additional vacation with Child during
the summer of 2021, and we affirm the court’s April 16, 2021 order on appeal
at 934 EDA 2021. Further, because we conclude the court lacked jurisdiction
to amend its April 16, 2021 order after Mother filed her notice of appeal, we
vacate the court’s June 10, 2021 order on appeal at 1383 EDA 2021.
Order on appeal at 934 EDA 2021 affirmed. Order on appeal at 1383
EDA 2021 vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/02/2022
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