Nelson, M. v. Kresge, J. ( 2022 )

J-A03033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MATTHEW J. NELSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JENNIFER KRESGE : No. 1417 EDA 2021
Appeal from the Order Entered June 17, 2021
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
2009-FC-1636
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 23, 2022
M.N. (Father) files this appeal from the order dated June 16, 2021, and
entered June 17, 2021,1 in the Lehigh County Court of Common Pleas,
granting in part and denying in part Father’s motion for reconsideration and
modifying the physical custody schedule as to his minor son, Z.K., born in
June 2009 (Child or the Child). After review, we affirm the trial court’s order.
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1 The subject order was dated June 16, 2021. However, notice pursuant to
Pa.R.C.P. 236(b) was not provided until June 17, 2021. Our appellate rules
designate the date of entry of an order as “the day on which the clerk makes
the notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our Supreme Court
has held that “an order is not appealable until it is entered on the docket with
the required notation that appropriate notice has been given.” Frazier v. City
of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (citations omitted).
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Father and J.K. (Mother) are the biological parents of Child. Litigation
commenced in December 2009 with a Complaint for Custody and has been
ongoing and contentious.2
Most recently, by order of December 18, 2017 (the December 2017
order), the court awarded the parties shared legal custody. Order, 12/18/17,
at ¶ 1. This included consultation and cooperation on major decisions affecting
Child, i.e. education, religion, and health. Id. The court further granted
Mother primary physical custody and Father partial physical custody on a two-
week schedule.3 Id. at ¶¶ 2, 3. During week one, Father was to exercise
physical custody from after school Wednesday until return to school Friday
morning, or 10:00 a.m. at the Whitehall Police Department if no school. Id.
at ¶ 3. During week two, Father was to exercise physical custody after school
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2 The extensive case history includes a prior appeal to this Court docketed at
330 EDA 2017 vacating the December 2016 custody order on appeal and
directing that upon remand, the prior order of shared physical custody shall
be re-imposed.
3 To the extent Father’s counsel raised a claim during oral argument, any
claims related to or challenges to this order would not only be untimely but
would also be waived. Pa.R.A.P. 903(a) (stating, “[T]he notice of appeal
required by Rule 902 . . . shall be filed within 30 days after the entry of the
order from which the appeal is taken.”); see also Krebs v. United Refining
Co., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a failure to preserve
issues by raising them both in the concise statement of errors complained of
on appeal and statement of questions involved portion of the brief on appeal
results in a waiver of those issues); see also In re W.H., 25 A.3d 330, 339
n.3 (Pa. Super. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa. Super.
2010)) (“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”); see also In re
M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017).
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Thursday until return to school Monday morning, or 10:00 a.m. at the
Whitehall Police Department if no school. Id. Aside from a holiday and
vacation schedule, id. at ¶¶ 4, 5, the order further provided for “reasonable
daily telephone access” for the non-custodial parent for no more than 20
minutes, id. at ¶ 9, as well as advance notice of medical appointments and/or
treatment, id. at ¶ 8. Moreover, among other provisions, the order prohibited
arguments and heated conversations in Child’s presence, id. at ¶ 12, as well
as derogatory language and attempts at alienation,4 id. at ¶¶ 11, 13.
After difficulty with custodial exchanges prior to Father’s custodial time
in June 2019, which persisted, Father filed an Emergency Petition for Special
Relief. Pursuant to order of September 11, 2019 (the September 2019 order),
the court maintained the December 2017 order, with the modification that
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4 Paragraph 11 of the December 2017 order stated:
The parties shall not undertake or allow by any other person the
poisoning of the minor child’s mind against one of the other parties
by conversation which includes any critical, hostile, or condemning
language, or in any way derogates the other party or extended
family members.
Order, 12/18/17, at ¶ 11. Further, paragraph 13 of the order stated:
Neither party shall attempt, or condone any attempt directly or
indirectly, by any artifice or subterfuge whatsoever, to estrange
child from the other parent, or to injure or impair the mutual love
and affection of the child. At all times each parent shall encourage
and foster in the child a sincere respect and affection for the other
parent and shall not hamper the natural development of the child’s
love and respect for the other parent.
Id. at ¶ 13.
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Child continue counseling, and directed the parties to file any petition to
modify or petition for contempt within 30 days if they desired. Order, 9/17/19.
As a result, Mother then filed petitions to modify and for contempt on October
2, 2019, and Father filed petitions to modify and for contempt on October 8,
2019.5 Among other things, Mother sought reduction of Father’s partial
physical custody to every other weekend and a dinner visit, and Father sought
primary physical custody and supervised partial physical custody for Mother,
as well as make-up custodial time and attorney’s fees.6
The court conducted a custody trial September 10, 2020, September
14, 2020, September 15, 2020, September 17, 2020, October 15, 2020,
November 6, 2020, and December 14, 2020.7 Both Mother and Father were
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5 In the interim, each party additionally filed petitions for special relief and
answers and counterclaims thereto which the court disposed of by order of
December 20, 2019 (the December 2019 order), after hearings on December
4, 2019, and December 9, 2019.
6Despite seeking primary physical custody in his pleading, at the time of trial,
Father testified that he was requesting shared physical custody. See N.T.,
11/6/20, at 134, 252.
7The Honorable James T. Anthony presided over this trial. The Honorable
Douglas G. Reichley had previously presided over this matter.
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present and represented by counsel. Mother and Father each testified on their
own behalf. The court further took testimony, in camera, of Child.8, 9
Additionally, Mother presented the testimony of Alfred Stirba, IV,
Esquire, Child’s guardian ad litem (GAL);10 S.H., Mother’s fiancé; and Damond
Pascoe, a fellow parent involved in local children’s sports programs. Father
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8 Pursuant to motion in limine, filed October 29, 2020, Father sought to
preclude the testimony of Child. In moving to preclude Child’s testimony,
Father argued, inter alia, that the record contained extensive testimony from
Child over the last five years; that Father would stipulate to Child’s preference,
which is consistent with Mother’s requested relief; that Child’s preference lacks
evidentiary weight and probative value; that “Child has been instructed and
prepared to provide testimony in Mother’s favor;” that, given Child’s age and
intelligence, “his testimony may be embellished or fabricated so as to obtain
his desired result.” Plaintiff’s Motion in Limine to Preclude Testimony of the
Minor Child, 10/29/20, at 1-5. The court denied Father’s motion by order
entered December 14, 2020.
Child testified that he does not feel comfortable in Father’s home. He
stated, “I never feel comfortable. I am always on edge, never knowing what
is going to happen.” N.T., 12/14/20, at 20. While noting that he loves Father,
Child, therefore, expressed a desire for shorter visits with Father. Id. at 26.
9 Over the course of the trial, both parties additionally presented numerous
exhibits which were forwarded electronically as part of the supplemental
certified record. We observe that Exhibit P-2, a posting of sheriff’s sale, is not
included with the supplemental certified record. Further, the copy of Exhibit
P-15, meant to demonstrate Father’s missed custodial time, while included,
does not reflect the intended and explained color codes related to Father’s
exercise of custodial time. We, however, do not find this detrimental to our
review. In particular, as to Exhibit P-15, Father provided detailed and lengthy
testimony as to his missed custodial time and this exhibit. N.T., 11/6/20, at
56-96; N.T., 10/15/20, at 216-60.
10The court appointed the GAL for Child pursuant to the December 2019 order.
See Order, 12/20/19. The GAL opined that the current custody schedule
should remain without modification. See N.T., 9/14/20, at 26-27.
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presented the testimony of Nancy Miller, Psy.D., a psychologist with Otto
Psychological Associates, L.L.C., who was accepted as an expert and
conducted a custody evaluation;11 Maria Heaton, M.S., NNC, LPC, who
previously provided counseling; and Todd Harder, a fellow parent involved in
local children’s sports programs.
Subsequently, the court issued a final custody order on February 12,
2021 (the February 2021 order), denying Mother’s petitions for modification
and for contempt and denying Father’s petitions for modification and for
contempt. See Order, 2/12/21, at ¶ 1. The court awarded the parties shared
legal custody. See id. at ¶ 2. As to physical custody, the court again granted
Mother primary custody, with partial physical custody to Father on a two-week
schedule following the same schedule previously ordered. See id. at ¶¶ 3a.,
3b. All exchanges during summer or when there is no school were to occur
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11Dr. Miller’s report was admitted as Exhibit P-1. Notably, the court appointed
Otto Psychological Associates for the purpose of a custody evaluation,
including a determination as to parental alienation, pursuant to order of
December 20, 2019. See Order, 12/20/19. Dr. Miller observed “a strong
suspicion of parental alienation.” Exhibit P-1, at 26. She indicated that Mother
“appears to be alienating [Child] against Father, even if she has done so
unintentionally,” noting “an underlying message” of negativity associated with
going with Father. Id. at 28.
As such, Dr. Miller offered a recommendation of shared physical
custody, specifically, a week-on week-off alternating schedule. Id. at 29. To
achieve this, she proposed a 30-day transition. Id. at 29-30. In so
recommending, Dr. Miller opined that awarding Mother primary physical would
be “harmful” and only serve to reinforce Child’s fears and anxieties. Id. at
30. Dr. Miller further advocated that the parties engage in individual therapy,
reunification therapy, and co-parenting counseling. Id. at 30-31.
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at the Whitehall Police Department unless otherwise agreed in writing. See
id. at ¶ 3c. The court further set forth a holiday schedule, id. at ¶ 4, provided
for transportation, id. at ¶ 6, and for telephone contact, id. at ¶ 10. Among
other things, the order also provided for the encouragement of a relationship
with the other party and prohibited action to thwart such a relationship,
including disparagement. See id. at ¶ 11.
On March 2, 2021, Father filed a motion for reconsideration raising many
of the same issues raised in the instant appeal. By order of March 4, 2021,
the court granted Father’s motion and agreed to reconsider its February 12,
2021 order. The court further scheduled a hearing for April 7, 2021.12 See
Order, 3/5/21.
By order dated June 16, 2021, and entered June 17, 2021, Father’s
motion for reconsideration was granted in part and denied in part. See Order,
6/17/21. The court modified the physical custody schedule as to week two to
include a dinner visit from Tuesday after school, or 4:00 p.m. if no school,
until 7:30 p.m. with return to the Whitehall Police Department. See id. at ¶
2b. Notably, the court further provided an analysis of the custody factors.
See id. at n.1.
Thereafter, on July 15, 2021, Father, through counsel, filed a timely
notice of appeal, along with a concise statement of errors complained of on
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12The notes of testimony of this hearing are not part of the certified record.
Nevertheless, we do not find them necessary for disposition of Father’s appeal.
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appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 13 The court issued a
Pa.R.A.P. 1925(a) opinion on August 19, 2021.
On appeal, Father raises the following issues for our review:
A. Whether the trial court committed an error of law and abuse of
discretion in issuing the Order entered on June 17, 2021 as it
failed to provide Father with any make up time for the one
hundred and nineteen (119) overnights with the Child that Mother
denied Father from June of 2019 to May of 2020?
B. Whether the trial court committed an error of law and abuse of
discretion in issuing the Order entered on June 17, 2021 as it
failed to appropriately consider and adopt the recommendations
of the court-appointed expert, Nancy Miller, Psy.D., who
conducted a comprehensive custody evaluation and issued a
report to the court and counsel for the parties on May 1, 2020,
which report was presented to the court along with Dr. Miller’s
uncontroverted and competent expert testimony?
C. Whether the trial court committed an error of law and abuse of
discretion in denying Father’s October 8, 2019 Petition for
Contempt in light of the facts and evidence of record elicited at
trial in this matter?
D. Whether the trial court committed an error of law and abuse of
discretion in providing Father with a dinner visit on Tuesday of
“week 2[,]” rather than an overnight, considering the evidence of
record elicited at trial regarding Mother’s actions in thwarting and
interfering with Father’s custodial time, and evidence as to the
high conflict nature of this matter which warrants a reduction in
custodial exchanges and contact between Mother and Father, not
an increase?
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13 See Pa.R.A.P. 1701(b)(3) (stating, in part, “Where a timely order of
reconsideration is entered under this paragraph, the time for filing a notice of
appeal or petition for review begins to run anew after the entry of the decision
on reconsideration, whether or not that decision amounts to a reaffirmation
of the prior determination of the trial court or other government unit.”).
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E. Whether the trial court committed an error of law and abuse of
discretion in denying Father’s October 29, 2021 Motion in Limine
to Preclude the Testimony of the Minor Child?
F. Whether the trial court committed an error of law and abuse of
discretion in issuing the Order entered on June 17, 2021 as it
failed to appropriately analyze and apply the factors identified in
23 [Pa.C.S.A.] § 5328 in light of the facts and evidence of record
elicited at trial in this matter, specifically, custody factors 1, 5, 6,
7, 8, 9, 13 and 16, (as more specifically set forth in Father’s
[Pa.R.A.P.] 1925(a)(2) Statement and the Argument section of
this brief) rendering the subject Order contrary to the best
interests and permanent welfare of the Child?
G. Whether the trial court committed an error of law and abuse of
discretion in arbitrarily allowing and disallowing certain testimony
regarding past incidents which were already the subject of prior
hearing in this matter, despite objections made by counsel for
Father?
H. Whether the trial court committed an error of law and abuse of
discretion in concluding that Mother’s withholding of custody from
Father was unintentional as the evidence and testimony of record
fail to support that conclusion?
I. Whether the trial court committed an error of law and abuse of
discretion in failing to address the clear parental alienation by
Mother against Father and failing to provide Father shared
physical custody and substantial make up time with the Child in
consideration of all of the facts and evidence of record, and despite
the fact that the court conceded “that Mother may in fact be
engaging in behavior that is causing some parental alienation,
though it may not be intentional[?]” (Exhibit “A” at footnote i., ¶
8).
J. Whether the trial court committed an error of law and abuse of
discretion in failing to include an enforcement mechanism in the
Order given Mother’s history of withholding the Child and failing
to abide by the court orders?
K. Whether the trial court committed an error of law and abuse of
discretion in failing to timely provide the forum to allow Father to
seek redress for Mother’s conduct in withholding the Child as
Father’s Petition for Contempt and Petition for Modification were
filed on October 8, 2019 and trial did not commence until
September 10, 2020?
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Father’s Brief at 4-8 (some capitalization modified; suggested answers
omitted).
In custody cases under the Child Custody Act (the Act), 23 Pa.C.S. §§
5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015).
This Court consistently has held:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
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as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations
omitted).
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section
5328(a) sets forth the best interest factors that the trial court must consider
in awarding custody. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2 (Pa. Super.
2011). Specifically, Section 5328(a) of the Act provides as follows:
§ 5328. Factors to consider when awarding custody
(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)(1) and
(2) (relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf
of the child.
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(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.
(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. § 5328(a).
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Further, with regard to the Custody Act, we have stated as follows:
“All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). . . . The record must be clear on appeal that the trial
court considered all the factors. Id.Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a written
opinion or order.” 23 Pa.C.S.[] § 5323(d). Additionally,
“[S]ection 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). . . .
In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [620
Pa. 710], 68 A.3d 909 (2013). A court’s explanation of reasons
for its decision, which adequately addresses the relevant factors,
complies with Section 5323(d). Id.A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (emphasis in original).
Turning to Father’s issues on appeal,14 we begin with his sixth, wherein
he challenges the trial court’s findings with respect to the Section 5328(a)
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14 While we note with disapproval procedural deficiencies related to Father’s
brief, in particular Father’s argument section is devoid of the required citation
requirements in portions, we decline to take any action as this does not
hamper our appellate review. We discern the general issues raised and related
argument. See Pa.R.A.P. 2101 (stating, “Briefs and reproduced records shall
conform in all material respects with the requirements of these rules as nearly
as the circumstances of the particular case will admit, otherwise they may be
suppressed, and, if the defects are in the brief or reproduced record of the
appellant and are substantial, the appeal or other matter may be quashed or
dismissed.”); see also Pa.R.A.P. 2119(a), (b), (e).
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best interest factors, asserting they are “unreasonable and unsupported by
the facts and evidence of record[] and are contrary to the best interests and
permanent welfare of the Child.” Father’s Brief at 38. Specifically, Father
challenges the court’s findings as to factors 1, 5, 6, 7, 8, 9, 13, and 16. See
id. at 38-55. As to these factors, the court found as follows:
1. Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party. This
factor is neutral. There was evidence presented that Father only
allows the Child to contact Mother on Father’s cell phone, and that
Father listens to these conversations. Father denied this and
testified that he encourages phone contact with Mother when the
Child is in his custody. Father testified that when he is on the
phone with the Child, Mother asks the Child to get off the phone
with Father. Mother denied this and testified she allows frequent
contact between the Child and Father. While Father presented
evidence that he missed multiple overnight visits with the Child,
this Court does not find that Mother was intentionally withholding
the Child from Father. Rather, at the time of custody exchanges,
the Child became visibly upset and would not go with Father. As
one example, there was evidence presented that rather was to
exercise custody following the Child’s wrestling practice in January
2020; however, upon seeing Father, the Child became extremely
upset, and refused to go with Father. After approximately one
hour, school officials and the Child’s guardian ad litem thought it
was best to have the Child go home with Mother. This resulted in
no custody exchange.
...
5. The availability of extended family. This factor is neutral.
Father’s family lives in New England, and the Child sees his
paternal grandparents regularly, and has a close relationship with
them. Father is remarried, and he and his wife have a 2-year-old
son, [W.], together. Mother’s direct family is outside the Lehigh
Valley, but she has extended family in the area. According to the
Child, he sees his maternal great grandparents—whom he refers
to as nana and pop-pop—and his fraternal aunts, uncles, and
cousins often. Mother is in a committed relationship, but does not
live with her significant other. Mother has another son, [O.], from
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a previous relationship. Per Dr. Miller—the expert relied upon by
Father—[O.] was 15 years old as of February [], 2020.
6. The child’s sibling relationships. This weighs slightly in favor of
Mother, [t]he Child and his half-brother, [O.], have a very close
bond, and share similar interests. The Child looks up to [O.] as a
role model. The Child also has a good relationship with [W.], but
because of the age difference, they do not share the same
interests.
7. The well-reasoned preference of the child, based on the child’s
maturity and judgment. This weighs in favor of Mother. The Child
stated he prefers to spend more time with Mother[] and feels more
comfortable at Mother’s house. The Child states his friends are in
Mother’s neighborhood, and that he does not really have any
friends in Father’s neighborhood. The Child indicated that Father
does not allow him to speak with [O.] when he is in Father’s
custody. He also stated he cannot speak privately with Mother
when he is at Father’s house. When he is in Mother’s custody, he
is free to text or call Father whenever he chooses. According to
the Child, Father is not home much when he is in Father’s custody,
and he does not get along with his [stepmother]. The Child stated
his [stepmother] is always recording him when he is at their
house. He also indicated disappointment with missing his sporting
events when in Father’s custody. During the [c]ourt’s interview
with the Child, he was well-spoken and provided thoughtful
reasons for his preference.
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.
This factor weighs slightly in favor of Father. Both parties have
engaged in behavior that paints the other parent in a bad light.
Both parties accuse the other of making unflattering remarks
about the other parent in front of the Child. However, Dr. Miller
suspects that Mother is alienating the Child against Father either
consciously or unconsciously. The [c]ourt concedes that Mother
may in fact be engaging in behavior that is causing some parental
alienation, though it may not be intentional.
9. Which party is more likely to maintain it loving, stable,
consistent and nurturing relationship with tine child adequate for
the child’s emotional needs. This factor weighs slightly in favor of
Mother. Both parents are capable of maintaining a relationship
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with the Child that will meet his emotional needs. However, at
this time, Mother appears more capable of providing a stable and,
nurturing environment due to the Child’s preference of being with
Mother, and his continued hesitance at being at Father’s. Even
Dr. Miller stated in her report that Mother is “naturally more
nurturing.”
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.
This factor is neutral. This is a high conflict case. Both parties
blame the other for the strained relationship between Father and
the Child. Their testimony consisted primarily of examples of how
each believes the other has failed in their parenting
responsibilities. Both parties exhibit outward hostility towards
each other and appear to be unwilling to work together in the best
interests of the Child.
16. Any other relevant factor. No other factors were considered
in this matter.
Order, 6/17/21, at n.1.
As to factor 1, which party is more likely to encourage and permit
frequent and continuing contact between the child and another party, Father
argues that the trial court erred in finding this factor neutral given the
evidence of Mother’s parental alienation and his missed overnight custody.
See Father’s Brief at 39-42. Highlighting a “false and spurious” Protection
from Abuse petition, Father purports a lack of evidence of Mother’s
encouragement of frequent and continuing contact.15 Id. at 40-41.
____________________________________________
15By way of background, Mother filed a Protection from Abuse petition on
August 9, 2019, which the court dismissed on August 20, 2019, after a
hearing.
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As to factor 5, the availability of extended family, Father asserts that
the trial court erred in finding this factor neutral. See id. at 42-44. He
contends that this factor should have been weighed in his favor, noting the
determination related to this factor in the prior order of December 18, 2017
and Child’s continued positive relationship with his paternal family. See id.
at 42-43.
As to factor 6, the child’s sibling relationships, Father argues that the
trial court erred in finding this factor in favor of Mother. See id. at 44-46.
Father suggests that the court should have found this factor to be neutral
given that Child has a half-sibling through each parent. See id. at 45-46. He
explains that Mother’s alienation limited Child’s time with his half-brother
through Father. See id. at 44. While recognizing Child’s close relationship
with his half-brother through Mother, Father posits that finding this factor in
favor of Mother rewards Mother’s alienation. See id. at 45.
As to factor 7, the well-reasoned preference of the child, based on the
child’s maturity and judgment, Father asserts that the trial court erred in
finding this factor in favor of Mother. See id. at 46-48. Noting the testimony
of Dr. Miller, Father indicates that Child’s preference cannot be considered
“well-reasoned.” Id. at 46.
As to factor 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, Father argues that
that the trial court erred in finding this factor in favor of Mother. Instead, he
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suggests this factor should “should be weighed heavily in favor of Father and
considered a factor of paramount importance in this case.” Id. at 48-49. Of
significance, Father raises Mother’s parental alienation. See id.
As to factor 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, Father asserts error in weighing this factor in favor of Mother
and not in favor of Father. See id. at 49-50. Father indicates that finding
this factor in favor of Mother again rewards her alienation of Father and
thwarting of his relationship with Child. See id.
As to factor 13, the level of conflict between the parties and the
willingness and ability of the parties to cooperate with one another, Father
claims error in finding this factor neutral and not in favor of Father. See id.
at 50-52. Father argues that any conflict is attributable to Mother. See id.
As to factor 16, any other relevant factor, Father argues that the trial
court erred in not considering Mother’s false allegations of abuse. Id. at 52-
55.
With regard to the custody factors, although the court is required to give
“weighted consideration to those factors which affect the safety of the child”
pursuant to 23 Pa.C.S. § 5328(a), we have acknowledged that the amount of
weight a court gives any one factor is almost entirely discretionary. M.J.M.
v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). Critically, as this Court stated
in M.J.M.:
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It is within the trial court’s purview as the finder of fact to
determine which factors are most salient and critical in
each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa. Super. 2010) (“In reviewing a custody order . . . our role does
not include making independent factual determinations. . . . In
addition, with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand.”). Our decision here does
not change that.
Id. (emphasis added).
In construing Father’s challenge, we interpret the issue at its core as a
dispute to the trial court’s findings of fact and determinations regarding
credibility and weight of the evidence, as well as the weight attributed to
certain factors. Father, in essence, questions the trial court’s conclusions and
assessments and seeks for this Court to re-find facts, re-weigh evidence,
and/or re-assess credibility to his view of the evidence. This we cannot do.
Under the aforementioned standard of review applicable in custody matters,
the trial court’s findings of fact and determinations regarding credibility and
weight of the evidence are not disturbed absent an abuse of discretion. See
C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527. As we stated in King
v. King, 889 A.2d 630 (Pa. Super. 2005), “It is not this Court’s function to
determine whether the trial court reached the right decision; rather, we must
consider whether, based on the evidence presented, given [sic] due deference
to the trial court’s weight and credibility determinations, the trial court erred
or abused its discretion[.]” Id. at 632 (citation and quotation marks omitted).
After a thorough review of the record, we find no abuse of discretion. To the
extent Father challenges the weight attributed to any factor by the trial court,
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we likewise find no abuse of discretion. As stated above, the amount of weight
that a trial court gives to any one factor is almost entirely within its discretion.
See M.J.M., 63 A.3d at 339.
In the case sub judice, the trial court reasonably analyzed and
addressed each factor under Section 5328(a). See Order, 6/17/21, at n.1.
After careful review of the record, we determine that the trial court’s findings
and determinations regarding the custody factors set forth in Section 5328(a)
are supported by competent evidence in the record, and we will not disturb
them. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527. As such,
Father’s claim is without merit.
Next, we consider Father’s first, third, eighth, and ninth issues relating
to make-up time, contempt, and parental alienation together as they are
interrelated.16 Father challenges the trial court’s failure to provide make-up
time for missed overnight custodial time. See Father’s Brief at 17-20. Father
argues that he provided “detailed and credible” testimony as to missing 119
overnight visits with Child from June 2019 to May 2020. Id. at 18. Noting
the behavior of the parties at custodial exchanges, Father then questions
Mother’s explanation for the sudden ability in May 2020 to exchange custody
of Child successfully. See id. at 19.
Father further asserts that the trial court erred and/or abused its
discretion in denying his petition for contempt without explanation, despite
____________________________________________
16 We likewise recognize that the trial court addressed these issues together
in its Rule 1925(a) opinion.
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support in the record. See id. at 28-32. Father points to Mother’s behavior
surrounding custodial exchanges, including derogatory statements, resulting
in missed overnight custodial time, and maintains that, regardless of intent,
Mother failed to exercise appropriate parental authority. See id. at 29-30. In
addition, he notes the corroboration of a finding of parental alienation. See
id. at 30. Father argues:
In failing to find Mother in [c]ontempt for refusing to assure
Father received custody of the Child, for alienating Father from
the Child thereby causing the Child’s apparent hesitancy to go with
his Father, and for failing to and/or refusing to exercise her
parental authority over the Child to ensure that Father received
custody of the Child, the [t]rial [c]ourt made an error of law.
Father also suggests that allowing Mother to act in this manner
without consequence would not only endorse this behavior in the
future for Mother[] but set a poor precedent for other custody
litigants in the future.
Id. at 30-31. Father also raises Mother’s failure to notify him in advance as
to several medical appointments for Child. See id. at 31-32. He notes the
trial court’s prior finding of contempt against Mother for withholding custody.
See id. at 32. Father concludes:
Mother’s actions with regard to the Child’s medical care,
coupled with her derogatory statements about Father to the Child
and her refusal to provide Father with his custodial time, make it
clear that Mother is attempting to systematically exclude Father
from the Child’s life. Mother must be found to be in [c]ontempt
of the [December 2017 order] based on the simple evidence of
record, including Mother’s own admissions.
Id. at 32.
Father likewise challenges the trial court’s finding that Mother’s
withholding of custody was unintentional. See id. at 58-60. In arguing the
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evidence contradicts such a finding, Father highlights his extensive testimony,
not found incredible, as well as that of Dr. Miller, and contends that such
evidence refutes any finding that Mother’s withholding of Child was
unintentional. See id. at 59-60. Moreover, relatedly, despite Dr. Miller’s
unequivocal conclusion of parental alienation, Father questions the trial court’s
finding of possible unintentional alienation and failure to address the same.
See id. at 60-61. He avers:
The [c]ourt has done absolutely nothing to address Mother’s
alienation of Father. The [c]ourt’s failure to address the alienation
in any way will only cause to reinforce and escalate Mother’s
alienating behaviors[] and cause further damage to the Child’s
already fragile relationship with Father. The [t]rial [c]ourt simply
concluded that Father has been alienated, possibly unintentionally
by Mother, but chose to do absolutely nothing to address said
alienation. It is an unfathomable error of law and abuse of
discretion for the [t]rial [c]ourt to ignore the clear alienation in
this case and do nothing to attempt to address or remedy it in the
best interests of the Child.
Id. at 61.
As to these issues, the trial court placed the focus on Child. The court
reasoned:
Here, [the court] determined that Mother did not willfully
withhold the Child from Father. Rather, due to the Child’s
negative reactions at custody exchanges, Mother determined it
was in his best interest to take the Child with her, rather than
forcing him to go with Father. The Child’s guardian ad litem
observed one of these exchanges and, along with other adults
present, determined it was best for the Child to go with Mother
rather than complete the exchange. Notably, the missed days
that Father sought to make-up were due to the Child’s
unwillingness to go with Father. Ordering make-up days and
forcing the Child to go with Father for additional overnights would
not be in his best interest.
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Additionally, while [the court] acknowledged that Mother
may be engaging in unintentional behavior that is causing some
parental alienation, this is but one factor [the court] used in
making [its] decision. Based on the record as a whole, and as set
forth in [the court’s] analysis of the custody factors, [the court]
found it was in the Child’s best interest to maintain the current
overnight schedule. As such, [the court] do[es] not believe [it]
abused [its] discretion.
Trial Ct. Op., 8/19/21, at 3 (unpaginated) (footnote omitted).
As to review of an order of civil contempt,
When we review a trial court’s finding of contempt, we are limited
to determining whether the trial court committed a clear abuse of
discretion. This Court must place great reliance on the sound
discretion of the trial judge when reviewing an order of contempt.
This Court also has stated that each court is the exclusive judge
of contempts against its process.
G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (internal citation and
quotations omitted). We previously determined:
A court may exercise its civil contempt power to enforce
compliance with its orders for the benefit of the party in whose
favor the order runs but not to inflict punishment. A party must
have violated a court order to be found in civil contempt. The
complaining party has the burden of proving by a preponderance
of evidence that a party violated a court order.
Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001) (internal citation
omitted).
To sustain a finding of civil contempt, the complainant must prove
certain distinct elements by a preponderance of the evidence: (1) that the
contemnor had notice of the specific order which was allegedly disobeyed; (2)
that the act constituting the contemnor’s violation was volitional; and (3) that
the contemnor acted with wrongful intent. See Stahl v. Redcay, 897 A.2d
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478, 489 (Pa. Super. 2006); see also Harcar v. Harcar, 982 A.2d 1230,
1235 (Pa. Super. 2009); see also 23 Pa.C.S. § 5323(g) (contempt for
noncompliance with any custody order).
Upon review, the trial court’s determination is supported by competent
evidence of record. Notably, the testimony of Mother and her fiancé reveals
the lack of intentionality related to any withholding of custody. See N.T.,
12/14/20, at 79-81; N.T., 9/14/20, at 81-82. In an exchange with the court
regarding her efforts, Mother testified as follows:
MOTHER: Yes. I attempted in numerous ways, encouraged
in numerous ways as well as I think it would -- [Child] --
THE COURT: I am not talking about the psychological ways.
I have to understand why the exchanges didn’t take place.
Why didn’t the exchanges take place?
MOTHER: [Father] and I both struggled to make the
exchange. You could not get [Child] out of the car. There were
exchanges that did happen. I think what we need to recognize is
that there was a problem with our son. We can’t change that.
THE COURT: It is very clear to the [c]ourt that some of the
exchanges were very troublesome. There was a lot of emotion,
crying -- I get it. So are so you saying you made your best effort
to do these exchanges?
MOTHER: I am saying -- yes. Not only that I gave up my
custodial time, I have sat in places for hours, encouraged -- text
message after text message, trying everything. . . .
* * *
THE COURT: . . . I just want to know what efforts you made
to make these exchanges.
MOTHER: Numerous. Different locations, offering my
custodial -- offering different suggestions, walking the park,
basketball in my back alley, everything I could possibly think of.
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Dinner visits, lunch visits, smaller visits building up to bigger
visits. Anything I could do to encourage communication between
them, suggesting [Father] call [Child]. . . .
* * *
THE COURT: . . .[Y]ou are saying you attempted to make
exchanges because of the emotions of your son and what not, that
did not occur?
MOTHER: Yes. I tried everything. The school -- everybody.
N.T., 12/14/20 (Mother’s testimony), at 79-81. Further, Child’s own
testimony confirmed Mother’s encouragement. See N.T., 12/14/20
(Interview of Minor Child in Chambers), at 21 (“My mom would be out of the
car trying to get me out.”). Similarly, Mother’s testimony substantiates a lack
of disregard on her part as to the provision for advance notification of medical
appointments and/or treatment. See N.T., 12/14/20 (Mother’s testimony),
at 60-68, 70-71, 73, 77. We therefore discern no abuse of discretion and do
not disturb the trial court’s finding.
With his second issue, Father addresses the expert testimony of Dr.
Nancy Miller. Father notes that Dr. Miller suggested that Child was getting
the message from Mother or her household that loyalty to and a positive
relationship with Father was a sign of disloyalty to Mother and found a “strong
suspicion of parental alienation.” Father’s Brief at 22-24. As a result, Father
explains that Dr. Miller recommended shared physical custody, and primary
physical custody for Father should Mother remain incapable of exchanging
physical custody. See id. at 25. Father maintains that, notwithstanding, the
trial court dismissed Dr. Miller’s findings and recommendations without any
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evidence presented to the contrary and without any stated basis for so doing.
See id. at 26-27.
Related to Dr. Miller, the trial court stated:
Regarding a court’s duty to consider an expert’s opinion in
custody matters, while the court cannot completely discount an
expert’s uncontradicted or unqualified opinion, as long as the
court’s conclusions are founded in the record, the court is not
obligated to accept the conclusions of the expert. [Nomland v.
Nomland], 813 A.2d 850, 854 (Pa. Super. 2002).
[The court] thoroughly considered Dr. Miller’s report and
expert testimony in making [its] custody determination[] but
reached a different conclusion. [The court] believe[s] that
ultimately a 50/50 physical custody schedule will be best for the
Child, but while Father and Child continue to work on their
relationship, it serves the Child’s best interest to keep the
overnight schedule as is. Furthermore, in determining that factor
8 weighs slightly in favor of Father, [the court] accepted Dr.
Miller’s opinion that Mother may be engaging in behavior that is
alienating the Child. Notably, Dr. Miller opined that Mother’s
actions may be unintentional, and [the court] found this to be true
based on the record as a whole. [The court] submits [it] did not
err in reaching a different conclusion than Dr. Miller regarding the
physical custody schedule.
Trial Ct. Op. at 4 (unpaginated) (footnote omitted).
On the issue of a court’s duty to consider expert testimony, this Court
previously has stated:
The trial court was under no obligation to delegate its
decision-making authority to [an expert]. See, e.g., K.W.B. v.
E.A.B., 698 A.2d 609, 613 ([Pa. Super.] 1997). It is an abuse of
discretion, however, for a trial court to dismiss “as unpersuasive,
and to totally discount, uncontradicted expert testimony.”
Murphey[ v. Hatala, 504 A.2d 917, 922 (Pa. Super. 1986)]; see
also Rinehimer v. Rinehimer, [485 A.2d 1166, 1169 (Pa.
Super. 1984)] (while not required to accept their conclusions,
“[t]he lower court was obligated to consider the testimony of the
two experts[.]”); Straub v. Tyahla, [418 A.2d 472, 476 (Pa.
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Super. 1980)] (“[W]e conclude that the lower court abused its
discretion in totally discounting as unpersuasive the expert
opinion testimony of appellant’s testifying psychiatrist.”).
Accordingly, while a trial court is not required to accept the
conclusions of an expert witness in a child custody case, it must
consider them, and if the trial court chooses not to follow the
expert’s recommendations, its independent decision must be
supported by competent evidence of record. See Nomland [ ],
813 A.2d [at] 854 [] (“To say that a court cannot discount
uncontradicted evidence, however, is merely to rephrase the
requirement that a child custody court’s conclusion have
competent evidence to support it. So long as the trial court’s
conclusions are founded in the record, the lower court was not
obligated to accept the conclusions of the experts.”) (citations and
quotation marks omitted).
M.A.T. v. G.S.T., 989 A.2d at 19-20.
Instantly, as explained in its Rule 1925(a) opinion, the trial court did
indeed consider Dr. Miller’s expert recommendation, and we conclude that the
court’s decision not to follow her recommendation is supported by competent
evidence of record. See M.A.T., 989 A.2d at 19-20; Nomland, 813 A.2d at
854. Significantly, we acknowledge the court referenced Dr. Miller’s finding
of alienation, intentional or unintentional, and determined that “Mother may
in fact be alienating the Child against Father either consciously or
unconsciously.” Order, 6/17/21, at n.1 ¶ 8. Moreover, we again highlight
Mother’s and her fiancé’s testimony as to Mother’s encouragement at custodial
exchanges and the lack of intentionality related to any withholding of custody.
See N.T., 12/14/20, at 79-81. We further recognize their testimony
recounting custodial exchanges. See N.T., 9/15/20, at 79; N.T., 9/14/20, at
81-83. Mother’s fiancé observed, “Custodial exchanges have been very
intense, very aggressive, very sad. It has definitely affected [Child]. I see
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fear in a little boy’s eyes that I have never seen fear in before.” Id. at 81.
He reported “upset” and “emotional fear.” Id. at 81, 83. Additionally, in
describing Child during these exchange moments, Mother testified:
[He] was agitated, crying. . . . This would start at school.
This would -- the night before we were having nightmares. Just
agitation, very distraught.
I would witness him throwing up before exchanges, having
diarrhea, being very anxious, just pulling at his seatbelt, putting
his hand on the door, rocking back and forth in the car. Just very
uneasy, very unlike him and it escalated very quickly.
N.T., 9/15/20, at 80. Likewise, the GAL, who witnessed a custodial exchange
where Mother was not present following a wrestling practice in January 2020,
detailed Child backing away from Father and having a “breakdown.” The GAL
explained, “[Child] was crying. He was sobbing. He was almost cowering
against the wall.” N.T., 9/14/20, at 13, 15. Thus, we find no error of law or
abuse of discretion.
Next, as to his fourth issue, Father argues that the trial court erred
and/or abused its discretion in including an additional dinner visit as opposed
to an overnight visit in response to Mother’s motion for reconsideration. See
Father’s Brief at 33-34. In support thereof, Father references Dr. Miller’s
opinion and recommendation, testimony supporting Mother’s efforts to
interfere with and thwart Father’s custodial time, as well as the high conflict
between the parties. See id. at 33. Father emphasizes that this provides
little additional time with Child and creates additional custodial exchanges.
See id. at 34.
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The trial court reasoned that the reduction of in-person exchanges is not
a reason to increase or reduce custodial time and points to the fact that during
the summer an overnight custodial period would not reduce custodial
exchanges between the parties. See Trial Ct. Op. at 4 (unpaginated). The
court further explained that it did not find that additional overnight custodial
time would be in Child’s best interest “due to his unwillingness to go with
Father for overnights.” Id. at 4-5 (unpaginated). As indicated supra, the
trial court analyzed and addressed each factor as required by Section 5328(a)
in establishing its custody order, including the additional dinner visit. See 23
Pa.C.S. § 5328(a); see also E.D., 33 A.3d at 79-80 n.2; see also J.R.M., 33
A.3d at 652. As such, Father’s claim is without merit.
With his fifth issue, Father argues that the trial court erred and/or
abused its discretion in denying his motion in limine to preclude Child’s
testimony. See Father’s Brief at 34-37. Father claims:
As a result of the significant history in this matter of Mother
alienating Father from the Child, the extensive recent testimony
from the minor [c]hild contained in the [c]ourt’s file in this matter,
Father’s willingness to [s]tipulate that the Child’s expressed
preference would be to live with Mother primarily, the interview of
the Child performed by Dr. Miller which the [t]rial [c]ourt was
apprised of in detail in Dr. Miller’s [r]eport, and the clear alienation
of Father by Mother which resulted in Father being denied
[c]ustody of the Child for almost an entire year prior to [t]rial, the
[c]ourt should have concluded that the Child’s preference could
not be considered well-reasoned, declined to interview the Child,
and should have [g]ranted Father’s Motion in Limine.
Id. at 34-35. Father further highlights that the prior presiding judge indicated
that too much deference had been given to Child’s preference. See id. at 35-
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36. Moreover, Father suggests that allowing Child to testify again permitted
Child to repeat negative statements and beliefs acquired from Mother and
afforded Mother “ample time to prepare and instruct the Child” explicitly or
implicitly as to his testimony. Id. at 36-37. Additionally, Father indicates that
testifying again served to only reinforce Child’s negativity toward Father. Id.
at 37.
As to the denial of Father’s motion in limine to preclude Child’s
testimony, the trial court reasoned the interview of a child is discretionary and
that in the instant matter such interview was essential to assess Child,
particularly as the presiding judge was newly assigned and had not been
present for Child’s prior testimony. See Trial Ct. Op. at 5 (unpaginated). The
court stated:
It is within the [c]ount’s discretion whether to interview a
child in a custody matter. [Pa.R.Civ.P. 1915.11(b)]. “Although
the express wishes of a child are not controlling in custody
decisions, such wishes do constitute an important factor that must
he carefully considered in determining the child’s best interest.”
[McMillen v. McMillen], 602 A.2d 845, 847 [(Pa. 1992)]. As this
matter was reassigned to me after the Child previously testified,
this trial was the first opportunity [the court] had to interview the
Child and hear his responses. It was necessary for [the court] to
judge the Child’s maturity, intelligence, and overall credibility—
matters which are not properly done by reading a transcript, but
rather hearing from the Child in person[—]in deciding how much
weight to give his preference. As such, . . .[the court] did not err
in denying Father’s Motion in Limine and allowing the Child to
testify. . . .
Id.- 30 -
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As to the interview of a child, Pennsylvania Rule of Civil Procedure
1915.11(b) is discretionary and does not mandate that a trial court interview
a child in a custody matter. Pa.R.Civ.P. 1915.11(b). Likewise, Pennsylvania
Rule of Civil Procedure 1915.11(c) does not mandate a child’s attendance at
a custody hearing. Rule 1915.11 provides, in relevant part:
Rule 1915.11. Appointment of Attorney for Child. Interview of
Child. Attendance of Child at Hearing or Conference
* * *
(b) The court may interview a child, whether or not the child is
the subject of the action, in open court or in chambers. The
interview shall be conducted in the presence of the attorneys and,
if permitted by the court, the parties. The attorneys shall have
the right to interview the child under the supervision of the court.
The interview shall be part of the record.
(c) Unless otherwise directed by the court, the child who is the
subject of the action shall not be required to attend a hearing
before the court or a conference.
Pa.R.Civ.P. 1915.11(b), (c) (emphasis added).
Despite the discretionary aspect, we recognize that we have previously
found that there are circumstances where the failure to interview a child is an
abuse of discretion. In E.C.S. v. M.C.S., 256 A.3d 449 (Pa. Super. 2021), we
stated:
[W]e clarify that, while Rule 1915.11 provides the trial court
with the option of whether to interview the child, its decision is
still subject to our review for an abuse of discretion. Although the
presence of a child “is not always necessary” and while “the child
should not be required to attend a hearing...in every
case,” see Comment to Rule 1915.11, it follows that there are
some instances where the court’s failure to interview the child
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constitutes an abuse of discretion. See also [Bovard v. Baker,
775 A.2d 835, 840 (Pa. Super. 2001)], supra.
Upon our review of the relevant precedents and persuasive
authorities, it is apparent the court will not abuse its discretion
when it forgoes a child interview, in cases involving only a narrow
or discrete, custody-related issue, as opposed to a material
change in the custody award. See [T.D. v. E.D., 194 A.3d 1119,
1126-27 (Pa. Super. 2018)](relating to unaccompanied
travel); see also [A.M. v. J.L.H., 251 A.3d. 1226 (Pa. Super.
2021)], supra (relating to the presence of the mother's boyfriend
during her custody time). After all, when the trial court resolves
a “discrete, custody-related issue,” we have held that a
complete Section 5328(a) analysis is not always
necessary. See [M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super.
2014)]. Similarly, we have found discretion is not abused when
neither party seeks an interview. See [K.L.C.S. v. D.W.S., 245
A.3d 1071 (Table), 2020 WL 7353815 (Pa. Super. 2020)], supra;
and see [E.H. v. Y.R., 241 A.3d 430 (Table), 2020 WL 6106650(Pa. Super. 2020)], supra.
Conversely, when a party explicitly requests the interview,
in a case involving a substantive custody award or a material
change from the custody arrangement, the court runs the risk of
abusing its discretion when it declines to interview the
child. See Bovard, supra. But even in such cases, courts may
decline the interview if there are ample reasons why the
experience would be traumatic or disruptive to the
child. See Comment to Rule 1915.11; see also T.D., 194 A.3d
at 1126.
E.C.S., 256 A.3d at 457.
This Court finds that Father’s argument regarding interview of Child
lacks merit. Upon review, we find no abuse of discretion. This matter involves
a substantive custody award and not a narrow, discrete issue related thereto.
Given that the presiding judge was newly appointed and had not previously
had the opportunity to evaluate Child, as well as the amount of time that had
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passed since Dr. Miller’s interview of Child, the trial court was justified in
assessing Child and his preference and attributing it the appropriate weight.
With his seventh issue, Father argues that the trial court erred and/or
abused its discretion in allowing testimony as to several prior incidents which
were the subject of the December 4, 2019, and December 9, 2019, hearings
as to the parties’ petitions for special relief and disposed of by the December
2019 order. Father specifically points to the testimony of Mother’s fiancé and
suggests that, despite the court taking Father’s objection as to this testimony
under advisement, it appears the court considered the testimony of Mother’s
fiancé. See Father’s Brief at 55-58. In so doing, Father contends that the
court allowed Mother to relitigate issues which were the subject of prior
hearings and disposition, resulting in prejudice. See id. at 57-58.
The trial court indicated that Father waived such issue and that he
“fail[ed] to identify specifically what testimony he takes issue with.” Trial Ct.
Op. at 6 (unpaginated).
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) requires an
appellant in a Children’s Fast Track matter to submit a concise statement of
errors complained of on appeal along with the notice of appeal. See Pa.R.A.P.
1925(a)(2)(i) (stating, “The concise statement of errors complained of on
appeal shall be filed and served with the notice of appeal required by Rule
905[.]”).
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Where a Rule 1925(b) statement does not sufficiently identify the issues
raised on appeal, this Court has found waiver of all issues on appeal and
explained as follows:
In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1999),
the Pennsylvania Supreme Court specifically held that “from this
date forward, in order to preserve their claims for appellate
review, Appellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal
pursuant to [Pa.R.A.P.] 1925.” Lord, 719 A.2d at 309. “Any
issues not raised in a 1925(b) statement will be deemed waived.”
Id. This Court explained in Riley v. Foley, 783 A.2d 807, 813
(Pa. Super. 2001), that Rule 1925 is a crucial component of the
appellate process because it allows the trial court to identify and
focus on those issues the parties plan to raise on appeal. This
Court has further explained that “a Concise Statement which is
too vague to allow the court to identify the issues raised on appeal
is the functional equivalent to no Concise Statement at all.”
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super.
2001). “Even if the trial court correctly guesses the issues
Appellants raise[] on appeal and writes an opinion pursuant to
that supposition the issues [are] still waived.” Commonwealth
v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002).
Kanter v. Epstein, 866 A.2d 394, 400 (Pa. Super. 2004). We have further
opined:
When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues.
In other words, a Concise Statement which is too vague to
allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all. While [Lord,
supra,] and its progeny have generally involved situations where
an appellant completely fails to mention an issue in his Concise
Statement, for the reasons set forth above we conclude that Lord
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should also apply to Concise Statements which are so vague as to
prevent the court from identifying the issue to be raised on appeal.
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006) (quoting
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001)).
While Father included this issue in his Rule 1925(b) statement, it is
evident that his recitation of the issue is vague and lacks specificity. He
states: “The trial court committed an error of law and abuse of discretion in
arbitrarily allowing and disallowing certain testimony regarding past incidents
which were already the subject of prior hearings in this matter, despite
objections made by counsel for Father?” Appellant’s Statement of Errors
Complained of on Appeal Pursuant to Pa.R.A.P. 1925(a), 7/15/21, at ¶ 7. In
reviewing Father’s Rule 1925(b) statement, it is unclear exactly what prior
testimony Father is challenging and to what incidents he is referring. As such,
we agree with the trial court that this issue is waived.
Even if the claim were not waived,17 the trial court’s analysis as set forth
in the order and subsequent opinion reveal no reliance on testimony as to the
prior incidents Father suggests in his argument regarding this issue.
Moreover, while Father argues prejudice, indicating that he would have
presented certain testimony in response, nothing prevented Father from so
doing. Therefore, this issue would be meritless.
Next, as to his tenth issue, Father maintains that the court erred and/or
abused its discretion by failing to include an enforcement mechanism in light
____________________________________________
17 Arguably, the trial court was aware of the testimony as to prior incidents
referenced by Father and to which he objected during trial.
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of the history of Mother’s failure to comply with court orders. See Father’s
Brief at 61-63. In so arguing, Father references the prior December 2019
order, which included potential future sanctions for failure to comply, and
acknowledges Mother’s resulting compliance. See id. at 62. Father argues,
“In consideration of the extreme length of time Mother withheld custody of
the Child from Father, and her history of [c]ontempt of [c]ourt[,] which [the
court] should have been aware of, the June 17, 2021 Order should have
included an enforcement mechanism of some type, such as was included . . .
in the December 20, 2019 Order of Court, to attempt to induce Mother to
comply.” Id. at 63. Father further suggests that the court, however, instead
focused on Mother’s current compliance and the successful transfer of custody
at the time of trial. See id. at 63.
In support of the lack of specific inclusion of an enforcement mechanism
in the order in question, the trial court stated:
Father alleges [the trial court] erred in failing to include an
enforcement mechanism regarding custody exchanges due to the
history of the parties. While it is unclear what “enforcement
mechanism” Father wishes to have included, he has all the normal
remedies available to him as in any custody matter, including
seeking modification, contempt, or special relief.
Trial Ct. Op. at 6 (unpaginated).
We agree. To the extent Father references the December 2019 order,
which included potential monetary sanctions and a potential reduction in
physical custody, as noted by the trial court, Father always has the ability to
file for modification, contempt, or special relief. Hence, this issue fails.
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Lastly, with his eleventh issue, Father claims error and/or abuse of
discretion as a result of the trial court’s lack of timeliness and delay. See
Father’s Brief at 63-64. Father argues that he was prejudiced not only by the
reassignment of the presiding judge prior to trial, but by the amount of time
it took from the filing of the petitions in question to the trial and from the trial
to disposition. See id. Father asserts, “Through no fault of Father, [t]rial in
this matter did not commence until eleven (11) months after he filed his
October 8, 2019 Petition for Contempt and Petition for Modification, and did
not conclude until December 14, 2020. Although Father is aware of the impact
that the COVID-19 [p]andemic had on the [c]ourts, that is a wholly inadequate
excuse for the delay of Father’s Petitions being heard by the [c]ourt.” Id. at
64. Father suggests that Mother’s eventual compliance with the order
resulting in resumption of his regular overnight custodial time correlated with
the pre-trial conference conducted in June 2020. He states, “As Mother began
to comply with the underlying Order as soon as the Pretrial Conference with
the [c]ourt was scheduled, had said Pretrial Conference been scheduled in a
timelier manner, Father likely would not have lost so many overnights with
the Child.” Id. He continues, “The lack of attention to this matter by the
[c]ourt allowed Mother to continue to withhold the Child with impunity.
Further, the delay in trial has more obvious impacts, such as hindering
witnesses’ ability to recall events which they are testifying about.” Id.
The trial court reasoned that Father suffered no prejudice as the court
was subject to an emergency order commencing on March 17, 2020, as a
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result of the COVID-19 pandemic which limited the scheduling of trials. As
such, the court indicated that, even if scheduled earlier, trial would have been
cancelled. See Trial Ct. Op. at 6-7 (unpaginated).
As to disposition of custody matters, Pennsylvania Rule of Civil
Procedure 1915.4. provides:
(a) Initial Contact With the Court. Depending upon the
procedure in the judicial district, the parties’ initial in-person
contact with the court (including, but not limited to a conference
with a conference officer pursuant to Rule 1915.4-2, a conference
with a judge, conciliation, mediation and/or class/seminar) shall
be scheduled to occur not later than 45 days from the filing of a
complaint or petition.
(b) Listing Trials Before the Court. Depending upon the
procedure in the judicial district, within 180 days of the filing of
the complaint either the court shall automatically enter an order
scheduling a trial before a judge or a party shall file a praecipe,
motion or request for trial, except as otherwise provided in this
subdivision. If it is not the practice of the court to automatically
schedule trials and neither party files a praecipe, motion or
request for trial within 180 days of filing of the pleading, the court
shall, sua sponte or on motion of a party, dismiss the matter
unless a party has been granted an extension for good cause
shown, or the court finds that dismissal is not in the best interests
of the child. The extension shall not exceed 60 days beyond the
180 day limit. A further reasonable extension may be granted by
the court upon agreement of the parties or when the court finds,
on the record, compelling circumstances for a further reasonable
extension. If an extension is granted and, thereafter, neither
party files a praecipe, motion or request for trial within the time
period allowed by the extension, the court shall, sua sponte or on
the motion of a party, dismiss the matter unless the court finds
that dismissal is not in the best interests of the child. A motion to
dismiss, pursuant to this rule, shall be filed and served upon the
opposing party. The opposing party shall have 20 days from the
date of service to file an objection. If no objection is filed, the
court shall dismiss the case. Prior to a sua sponte dismissal, the
court shall notify the parties of an intent to dismiss the case unless
an objection is filed within 20 days of the date of the notice.
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(c) Trial. Trials before a judge shall commence within 90 days of
the date the scheduling order is entered. Trials and hearings shall
be scheduled to be heard on consecutive days whenever possible
but, if not on consecutive days, then the trial or hearing shall be
concluded not later than 45 days from commencement.
(d) Prompt Decisions. The judge’s decision shall be entered
and filed within 15 days of the date upon which the trial is
concluded unless, within that time, the court extends the date for
such decision by order entered of record showing good cause for
the extension. In no event shall an extension delay the entry of
the court's decision more than 45 days after the conclusion of trial.
(e) Emergency or Special Relief. Nothing in this rule shall
preclude a party from seeking, nor a court from ordering,
emergency or interim special relief at any time after the
commencement of the action.
Pa.R.Civ.P. 1915.4.
Critically, the record fails to reveal that Father raised any prior objection
as to timing and/or scheduling or made any requests for earlier dates during
disposition of these petitions. Father, therefore, waived this issue by failing
to raise it in the court below as the matter proceeded. See Pa.R.A.P. 302(a)
(providing for waiver of issues not first raised in lower court); Fillmore v.
Hill, 665 A.2d 514, 515-16 (Pa. Super. 1995) (stating, “[I]n order to preserve
an issue for appellate review, a party must make a timely and specific
objection at the appropriate stage of the proceedings before the trial court.
Failure to timely object to a basic and fundamental error, such as an erroneous
jury instruction, will result in waiver of that issue. On appeal, the Superior
Court will not consider a claim which was not called to the trial court’s
attention at a time when any error committed could have been corrected.”)
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(citations omitted); see also Bednarek v. Velazquez, 830 A.2d 1267, 1270
(Pa. Super. 2003).
Regardless, we would be unable to rectify any delay as we cannot go
back in time and provide Father an earlier hearing. Moreover, as a result of
the COVID-19 pandemic and its impact on scheduling, it is unlikely that an
earlier trial would have proceeded.
For the foregoing reasons, we affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2022
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