J.P.W., Jr. v. A.N.H. ( 2016 )


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  • J-S54008-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    J.P.W., JR.,                                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    A.N.H.,
    Appellant                No. 191 WDA 2016
    Appeal from the Order Entered January 6, 2016
    In the Court of Common Pleas of Washington County
    Civil Division at No(s): No. 2010-10883
    BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
    MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 24, 2016
    A.N.H. (Mother) appeals from the January 6, 2016 order that denied
    and dismissed her modification petition that requested a change in the
    custody of A.J.W. (Child), born in November of 2010, the son of Mother and
    J.P.W., Jr. (Father).
    As explained by the trial court, the parties have litigated the custody of
    their son and related matters from shortly after Child’s birth.     This latest
    order on appeal denied and dismissed Mother’s custody modification petition
    without a hearing. Mother filed a timely appeal and a concise statement of
    errors complained of on appeal pursuant to Pa.R.A.P. 1925(a0(2)(i) and (b).
    She raises the following issues for our review:
    I. Whether the trial court committed an error of law by finding
    that Mother was required to aver a substantial change in
    circumstances in order for Mother to request a modification of a
    custody order and by denying Mother’s Petition for Modification
    J-S54008-16
    of Custody without a hearing to determine if said modification
    would be in the best interest of the child pursuant to 23 Pa.C.S.
    [§] 5338(a)[?]
    II. Whether the trial court committed an error of law by denying
    Mother a hearing on her Petition for Modification which violated
    Mother’s procedural due process rights under the United States
    Constitution and Pennsylvania Constitution[?]
    Mother’s brief at 4.
    In addressing the type of issues raised in this appeal, we are guided by
    the following:
    In reviewing a custody order, our scope is of the broadest type
    and our standard is abuse of discretion…. 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.
    M.O. v. J.T.R., 
    85 A.3d 1058
    , 1061 (Pa. Super. 2014).
    We have reviewed the pertinent parts of the certified record, the briefs
    of the parties, the applicable law, and the thorough opinion authored by the
    Honorable John F. DiSalle of the Court of Common Pleas of Washington
    County, dated March 9, 2016.       We conclude that Judge DiSalle’s well-
    reasoned opinion correctly disposes of the issues presented by Mother on
    appeal and we discern no abuse of discretion or error of law. Accordingly,
    we adopt Judge DiSalle’s opinion as our own and affirm the January 6, 2016
    order on that basis.
    Order affirmed.
    -2-
    J-S54008-16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/24/2016
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    IN THE-COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
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    Plaintiff,                    )
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    a vs.,1                                           )                 191 WDA 2016
    rf'N · 17 .,,                                     )                 No. 2010-10883
    )
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    Defendant.                    )                 tliffiY OF OPINION,         OIIDitll., D.-mC:Rll1! ,i
    ·tJ)J"UD!GATIOtJ OR JU'        ., II .'r FIL]JJJ:)..::J,:Jk
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    OPINION            ro ~_e,~Ji?            ·.~~Y'So'"':
    This is an appeal from the order of the trial court dated January 6, 2016, denying and .
    /J-,IJ.f/.
    · dismissing the petition for modification of custody filed by Mother, defendant I                   g 3 I 1 II
    ("Mother"), seeking the modification of the custody order dated March 25, 2014, regarding-the
    custody of the parties' minor child, A.J.W,1 now age five (born November.                  2010). The final
    custody order of March 25, 2014 was entered after nearly four years of litigation over the
    custody of A.J.W. Mother filed a timely appeal from the final custody order, which was
    affirmed by the Superior Court.2 Less than nine months after Mother's application for
    reargument was denied, she presented the instant petition for modification of custody. Upon
    consideration of the petition for modification, the trial court entered its order of January 6, 2016,
    I
    The child's name was changed from A.W.H., the surname of Mother's ex-husband, to A.J.W., Father's surname,
    over Mother's objection, by order dated October 30, 2012, pursuant to the petition for name change filed by Father
    docketed at No. 2011-4793. Mother filed an appeal to the Superior Court on October 30, 2012, docketed at number
    1682 WDA 2012. The Superior Court affirmed the name change by order dated March 21, 2014, and Mother
    applied for reargument. Reargument was granted by order dated May 19, 2014, and the order changing the Child's
    last name to Father's name was affirmed by order dated April 17, 2015. Mother filed a Petition for Allowance of
    Appeal to the Supreme Court, docketed at number 184 WAL 2015, which was denied by order dated December 17,
    2015.                                  .
    2
    Mother's appeal is docketed at number 646 WDA 2014; this Court affirmed the final custody order by its order
    dated January 14, 2015; Mother filed an Application for Reargument to the Superior Court, which was denied by
    order dated March 3, 2015.
    denying the petition without a hearing, From this order, Mother filed a timely appeal to the
    Superior Court of Pennsylvania.
    ,.--          -r:          Procedural History:
    ,JI f.   lJ,)   ,j~•)
    Father,•-•••••··                   ("Father") filed the Complaint for Custody herein on
    December 21, 2010, seven weeks after A.J.W. was born. Following years of contentious court
    proceedings and multiple days of custody hearings before the trial court, which included the
    testimony and reports of custody evaluators as expert witnesses, the trial court entered the
    custody order of March 25, 2014; awarding sole legal custody of A.J.V(. to Father and shared
    physical custody of the Minor Child to both parents.
    Mother filed a timely appeal to the Superior Court of Pennsylvania, docketed at number
    646 WDA 2014, and by order dated January 14, 2015, the Superior Court affirmed the custody
    order of March 25, 2014. Mother filed an Application for Reargument to the Superior Court,
    which was denied by order dated March 3, 2015.
    Byorder dated December 19, 2014, Mother was found in contempt of the custody order
    of March 25,'2014, for acting adversely to the Child's best interests by continuing to claim to
    representatives of his school and   to health care providers that he was autistic and
    developmentally delayed when there was no evidence of this, and it was contrary to the reports
    of the medical providers. Mother filed an appeal of this order to the Superior Court, docketed at
    number 170 WDA 2015, and by order dated October 29, 2015, the Superior Court affirmed the
    trial court's order. On November 30, 2015, Mother filed a Petition for Allowance of appeal to
    the Supreme Court of Pennsylvania, at docket number 465 WAL 2015, which was denied on
    January 20,2016.
    2
    Mother then presented to the trial court her Petition for Modification of the Child's
    custody order which alleged no change in circumstances of the Child's custody. On January 6,
    2016, the trial court entered its order denying Mother's petition without hearing.
    Legal Analysis:
    In her Petition for Modification, Mother alleged no change whatsoever in the
    circumstances of the Child's custody, rather, Mother's petition merely "avers that there is no
    reason that the parties cannot enjoy an equally shared custody schedule" and that "Mother
    desires to have her legal custody rights restored." The trial court found the petition insufficient
    to warrant the re-litigation of the long, contentious custody battle which has consumed the
    Child's entire life thus far. The custody order which Mother seeks to modify has been in effect
    for less than two years, and has not yet been given a chance to establish a pattern or any
    continuity in the Child's life. The Child has not had the opportunity to complete pre-school
    under the current order without Mother's interference. Furthermore, Mother has demonstrated
    '1f\
    an ability to act in the Child's best interests and to comply with the current order, and had been
    I\
    sanctioned for her contempt just prior to her modification request.
    On appeal, Mother raises the .following issues in her concise statement of matters
    complained of:
    1.   "The Trial Court committed an error of law by denying Mother's Petition for
    Modification of Custody without a hearing to determine if said modification would be
    in the best interest of the child pursuant to 23 Pa.C.S.A. §5338(a).»
    2. "The Trial Court committed an error of law by denying Mother's Petition for
    Modification of Custody by finding that Mother was required to aver a substantial
    change in circumstances in her Petition for Modification."
    3
    Petition for Modification,   1s 4 and 5.
    3
    3. "The Trial Court committed an error of law by denying Mother a hearing on her
    Petition for Modification which violated Mother's procedural and substantive due
    process rights under the United States Constitution and Pennsylvania Constitution."4
    Beginning with the second issue of error set forth above, Mother seems to claim that the
    trial court applied the wrong standard in denying Mother's petition for modification, because the
    trial court required Mother to "aver a substantial change in circumstances." This issue is without
    merit as this simply was not the court's reasoning.
    In its order denying Mother's modification petition, the trial court noted that Mother
    alleged no change of circumstances whatsoever, and citing Daniel KD. v. Jan MR 
    301 Pa.Super. 36
    , 
    446 A.2d 1323
     (1982), stated:
    The first inquiry in a custody modification proceeding is whether, since
    the entry of the existing custody order, there has been a substantial change in
    circumstances that would justify a court's reconsideration of the custody
    disposition.
    "'To permit a party to relitigate a subject of relative fitness of parents to
    have custody of children by an inquiry into the same or other facts existing at the
    time of or prior to' the former decree would lay a foundation for interminable and
    vexatious litigation ... '"
    Daniel KD. v. Jan MR 
    301 Pa.Super. 36
    , 40, 46, 
    446 A.2d 1323
    , 1324~25
    (1982), note 2, citing Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa.Super 22,
    24, 
    184 A.2d 290
    , 291 (1962) (quoting Commonwealth ex rel. Crawford v.
    Crawford, 
    170 Pa.Super. 151
    , 154, 
    84 A.2d 237
    , 238 (1951); Commonwealth ex
    rel. Zaubi v. Zaubi, 275 Pa.Super, 294, 
    418 A.2d 729
     (1980), aff'd on other
    grounds, 
    492 Pa. 183
    , 
    423 A.2d 333
     (1981).
    However, the standard for modification, as codified by section 5338 of the Child Custody Act, is
    that the "court may modify a custody order to serve the best interest of the child."5 This is in fact
    4 Mother's "Concise Statement of Errors Complained of on Appeal Pursuant to Pennsylvania Rule of Appellate
    Procedure l 925(a)(2)(i)" ~s 1 through 3.
    5
    23 Pa.C.S.A. § 5338.
    4
    the standard applied by the trial court in its denial of Mother's modification request, as noted in
    its findings. The trial court expressly found that:
    The Child's best interests would not be served by re-litigating the custody
    order and Mother's desire to do so is rife with potential harm to the Child,
    and only demonstrates her continued disregard for the Child's health, safety,
    welfare and best interests.6
    The trial court further reiterated its findings from the final custody order of March 25, 2014,
    "that Mother is unwilling to cooperate with Father on the most basic level, that Mother refuses to
    accept the diagnoses of the Child's medical providers, refuses to accept the recommendations of
    the custody evaluators, and that Mother refuses to co-parent with Father."7
    The comment to the modification section of the Child Custody Act, 23 Pa.C.S.A. §
    5338(a), notes the reasoning behind the original 2010 change in the law (effective January 24,
    2011 ), citing the standard used by the Supreme Court of Pennsylvania in Karls v. Karls, 
    518 Pa. 601
    , 
    544 A.2d 1328
     (1988) (holding "a petition for modification of a partial custody to shared
    custody order requires the court to inquire into the best interest of the child regardless of whether
    a 'substantial' change of circumstances has been shown"). This standard was also used in
    McMillenv. McMillen, 
    529 Pa. 198
    , 
    602 A.2d 845
     (1992).
    While some courts have continued to require a showing of a substantial change in
    circumstances alongside a review of the best interests of the child, following Karts and
    Mcbdtllen, see Gianvito v. Gianvito, 
    975 A.2d 1163
     (Pa. Super. 2009),_given the statutory
    changes made in the 2010 codification of 23 Pa.C.S. § 5338, it appears that the only controlling
    standard remaining is that of the "best interests of the child." However, the burden of showing
    6
    Order dated January 6, 20 i6 at page 4.
    7
    Order dated January 6, 2016 at page 3.
    5
    that a modification is in the best interest of a child still lies upon the party seeking that
    modification. Johns v. Cinci, 
    865 A.2d 931
     (Pa. Super. 2004). See also Pa. R.C.P., No.
    1915. lS(b) (providing a form for a Petition to Modify a Custody Order containing a section in
    which to assert the reasoning for the proposed modification).
    Mother's petition for modification raised no issues which had not been previously
    considered by the trial court during the custody proceedings in March of 2014, and as noted,·
    alleged no change in circumstances whatsoever: ·
    4. "The parties live very close to each otherand Mother believes and avers there
    is no reason that the parties cannot enjoy an equally shared custody schedule."
    5. "Additionally, Mother desires to have her legal custody rights restored."
    6. "Mother believes a modification is in the child's best interest to-wit
    (a) Mother is able to provide for the education, psychological, spiritual, emotional
    and physical needs of the child.
    (b) Mother has been the parent who has been the primary caretaker for the child
    throughout the greatest portion of the life of said child.
    (c) It is essential to the child's proper development, stability and general welfare
    that the Mother be permitted to maintain an ongoing normal and meaningful
    relationship with the child.
    (d) It is in the child's best interest that Mother be permitted to provide the child
    with continuing love, attention, guidance, training and education.
    (e) It is in the child's best interest that Mother take an active and appropriate role
    in the child's life.
    6
    (f) It is in the child's best interest that Mother be permitted to provide the child
    with the care, supervision and stability that are necessary for the child's
    physical and emotional development.'"
    All of these averments are factors that were considered by the trial court in issuing the final
    custody order of March 25, 2014.
    Moreover, the trial court expressly found in the custody order that "Mother continues to
    claim that the child has special needs, particularly 'autistic features,' and that the child has
    developmental delays, although the medical evidence shows the contrary" and that "Mother
    refuses to accept the provider's reports that the child is no longer developmentally delayed.r"
    Despite the clear medical evidence to the contrary, Mother continued to tell the Child's school
    officials and others that he was developmentally delayed and autistic. After hearings on Father's
    motion for special relief, the trial court on December 14, 2014, had to order Mother to cease and
    desist from telling others that the Child was autistic. As noted in the trial court's opinion after
    Mother's appeal:
    Dr. Foley (the Child's pediatrician) testified that he never thought that the Child
    had any signs of being autistic, that he did not know wh[c Mother would say the
    Child was autistic since there is no indication that he is, 0 that all of the Child's
    developmental milestones were appropriate for his age, and that he is a "normal,
    healthy, four-year old child."!' Despite having heard these. medical professionals
    testify in court, particularly Dr. Foley, who has been treating the Child since birth,
    Mother continues to insist that the Child is autistic.
    The trial court expressly found that Mother's refusal to accept the medical
    testimony and her behavior in this regard is detrimental to the welfare of the
    Child. Nevertheless, Mother wants to litigate this issue and assert her First
    Amendment constitutional rights at the expense of her Child's well being.
    8
    Mother's Petition for Modification of a Custody Order, 1s 4 - 6.
    9
    Final Custody Order dated March 25, 2014, ~ 7, p. 10.
    10
    Hearing transcript, November 21, 2014, p. 12.
    11
    Id. at p. 16.
    7
    As noted above, Motlier filed an appeal from this "cease and desist" order to the Superior Court,
    docketed at number 170 WDA 2015, and by order dated October 29, 2015, the Superior Court
    affirmed the trial court's order. On November 30, 2015, Mother filed a Petition for Allowance
    of appeal to the Supreme Court of Pennsylvania, docketed at number 465 WAL 2015, and by
    order dated January 20, 2016, the petition was denied.
    As stated, not only has Mother failed to aver any changes in the Child's circumstances
    which would warrant modification or reconsideration, Mother has made no offer to change her
    own behavior. Rather, Mother merely has reiterated her desire to continue the litigation and the
    discord over her Child's custody. The trial court finds Mother's behavior detrimental to the best
    interest of the Child, and to his health, safety and welfare.
    The first and third issues raised by Mother assert      her constitutional   challenge that the trial
    court's failure to conduct a hearing on the petition for modification "violated Mother's
    procedural and substantive due process rights under the United States Constitution and
    Pennsylvania Constitution."12 The trial court finds it ridiculous that, after all the extensive
    litigation, the pleadings, hearings and appeals that have been conducted with respect to her
    t
    Child, Mother could assert that she has been denied her constitutional right of due process.
    In any case, no existing authority appears to directly address whether a party is entitled to
    a hearing on a petition to modify a custody order prior to its dismissal. The only cases addressing
    the necessity of a hearing appear to narrowly hold only that a hearing is required prior to any
    actual modification of the substantial terms of the custody order. Specifically, the Superior Court
    in MO. v. J.T.R., 
    85 A.3d 1058
     (Pa. Super. 2014) held that the trial court need not discuss or
    delineate the 16 factors in determining what is in the "best interest of the child" or provide
    12
    Mother's "Concise Statement of Errors Complained of on Appeal Pursuant to Pennsylvania Rule of Appellate
    Procedure 1925(a)(2)(i)" 1s l and 3.
    8
    reasons on the record for its decision as stated under section 5323(d) of the Child Custody Act
    (relating to an award of custody), when the court is not making an award of custody. It thus
    seems to follow, logically, that if the court is not making or modifying an award of custody, that
    it is not required to conduct a hearing on the petition. This is particularly appropriate here,
    where the moving party has failed to assert any change, or anything that has not been previously
    considered by the trial court or the Superior Court. Moreover, Mother, as the petitioner, failed to
    articulate how the proposed modification would be in the best interest of the child.
    As discussed above, the burden of showing that a modification is in the best interest of a
    child is incumbent upon the party seeking that modification. Johns v. Cinci, 
    865 A.2d 931
     (P~.
    Super. 2004). See also Pa. R.C.P., No. 1915.15(b) (providing a form for a Petition to Modify a
    Custody Order containing a section in which to assert the reasoning for the proposed
    modification). Mother apparently believes that she is entitled to re-start the custody proceedings
    just for the asking. Certainly, the Custody Act, the Rules of Civil Procedure and the appellate
    precedents do not permit the modification of a custody disposition merely upon the finality of the
    previous custody order.
    The litigation of this Child's custody has already been contentious and vexatious thus far.
    To permit Mother to begin the custody process again, especially without eve!} an averment of a
    change in circumstance, would render interminable the litigation.
    It is axiomatic that the potential harm that may result from the disruption
    of established patterns of care and emotional bonds underscores the need for
    continuity, stability, and finality imparted to custody arrangements. A
    modification of custody is not warranted merely because one parent is
    unhappy with the existing arrangement. Thus, we repeatedly have emphasized
    that a party requesting modification must prove that the alteration of an existing
    custody arrangement is in the child's best interest. (Emphasis added).
    9
    See Jackson v. Beck, 
    858 A.2d 1250
     (Pa.Super. 2004), citing Myers v. Dillomentco, 441
    Pa.Super, 341, 
    657 A.2d 956
     (1995); McMillen v. McMillen, 
    529 Pa. 198
    , 
    602 A.2d 845
     (1992).
    As stated above, the trial court found that the Child's best interests would not be served
    by r~-litigating the custody order and Mother's desire to do so is rife with potential harm to the
    Child, and only demonstrates her continued disregard for the Child's health, safety, welfare and
    best interests.
    This is not the first instance where Mother has asserted her constitutional rights in
    advance of the Child's best interests, and health; safety and welfare. As discussed above, after
    hearing medi~a~ evidence that the Child was not autistic or developmentally delayed, the trial
    court was compelled to order Mother to refrain from telling health care providers, school
    officials and others that he was so. Rather than accept the pediatrician's findings, which Mother
    refuses to do, Mother appealed from this order, asserting her First Amendment right of free
    speech. The Superior Court affirmed, finding that Mother's untrue statements about the Child
    · were not constitutionally protected:
    Based on this evidence, the trial court found that Mother's untrue statements
    regarding Child's mental health and developmental and behavioral progress are
    detrimental to Child's welfare. See Trial Court Opinion, 3/20/15, at 3, 11. The
    findings and analysis of the trial court are amply supported.by the competent
    evidence of record. See id. at 3-6, 9-11; see also id. at 11 ( stating that "Mother's·
    desire to disparage and defame her Child by telling others that he is
    developmentally delayed or that he is not potty trained is not constitutionally
    protected, and Mother's right of free speech cannot supersede the health, safety
    and welfare of her Child."),
    Additionally, we conclude that the trial court chose the least restrictive
    means to protect the psychological well-being of Child, by narrowly proscribing
    that "Mother shall cease and desist from stating to anyone or inferring that [C]hild
    has autism or developmental delays or other behavioral issues." See Trial Court
    Opinion, 12/24/14, at 2 (unnumbered). Based on the facts and circumstances of
    this particular case, we discern no error of law or abuse of discretion by the trial
    court, and affirm the trial court's Order as to this issue.13
    13
    J.P.W.;Jr.   v. A.N.H., No. 170 WDA 2015, filed October 29, 2015, J-A23015-15,   pp. 13-14.
    10
    Likewise, Mother cannot invoke her 14th Amendment right of due process to the detriment of her
    Child. In fact, Mother's right of due process has been exhaustively satisfied, as noted in the
    procedural history set forth above.14 Mother has had her custody case litigated as much or
    perhaps more than arty other parent. As set forth above, Mother's unhappiness with the result of
    the custody litigation does not warrant the modification of the current custody order. The
    paramount consideration is the best interest of the Child.15 In her petition for modification
    Mother has offered nothing that the trial court has not previously considered, and has offered
    nothing which will promote the Child's health, safety or welfare, or his best interests.
    Based on the foregoing, the trial court respectfully submits that the order appealed from
    dated January 6, 2016 should be affirmed, and that the appeal should be dismissed.
    BY THE COURT:
    Date        ·     ~ .
    14
    TI1e procedural history is set forth more fully in the trial court's opinion filed August 20, 2014, docketed at No.
    646 WDA 2014, after Mother appealed from the custody order.
    15
    23 Pa.C.S.A. §§ 5323(a), 5328(a).
    11