L.M. v. C. McG. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
C. McG. : No. 1093 EDA 2018
Appeal from the Order Entered March 13, 2018
In the Court of Common Pleas of Bucks County
Domestic Relations at No(s): No. 2011-62920-C
BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER**, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 28, 2018
L.M.1 appeals from the March 13, 2018 order denying her “petition for
special relief to dispose of [her] outstanding request to relocate.” We affirm.
We adopt the following factual and procedural history from the trial
court’s opinions, which are supported by the record. See Trial Court Opinion
(“TCO”), 1/23/18; TCO, 3/16/18; TCO, 6/20/18, at 2-6.
C.McG., a transgender woman, and L.M., a cisgender woman, entered
into a romantic relationship in 2005. In April 2010, L.M. gave birth to twins,
E.M. and Lu.M. (collectively, “Children”), after being impregnated with
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* Retired Senior Judge assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
1L.M. is referred to in the trial court’s memorandum opinion as L.B., her birth
name. As L.M.’s appeal was filed using the surname of her current wife, we
will refer to her in that manner.
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C.McG.’s banked sperm; both mothers are thus the biological parents of
Children.
This matter was initiated in September 2011, following the parties’
separation. L.M. filed a petition for custody of Children. Following a hearing in
December 2011, the court entered a temporary order awarding the parties
shared custody of Children. The order memorialized the parties’ agreement to
undergo a private custody evaluation by Dr. Stephen R. Cohen, a psychologist.
In October 2012, Dr. Cohen submitted a seventy-five page custody evaluation
report, developed after extensive interviews of nineteen individuals, including
four interviews of the parties, and six psychological tests administered to L.M.
and C.McG.
In February 2013, L.M. provided C.McG.with a notice of her proposed
relocation to Macungie, Pennsylvania. C.McG. filed a notice of opposition to
the relocation and in March 2013, L.M. filed a motion for an expedited custody
hearing. In April 2013, the court entered an order approving a stipulation
between the parties, providing for shared legal and physical custody of
Children in a fourteen-day alternating schedule, permitting L.M. to relocate to
Macungie, which is in Lehigh County, and agreeing that all custody exchanges
would occur at C.McG.’s residence in Bucks County, and that L.M. would
provide all transportation for custody exchanges. L.M. and C.McG. agreed to
undergo three co-parenting counseling sessions.
In July 2013, L.M. filed a petition to modify the custody order, seeking
primary physical custody of Children because she wished to enroll them in fall
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preschool in Macungie and had difficulty transporting Children. On December
19, 2014, C.McG. filed a petition to modify custody, requesting Children reside
primarily with her in Bucks County to attend kindergarten in the New Hope-
Solebury school district, and opposed another proposed relocation by L.M.
from Macungie, Pennsylvania, to Watchung, New Jersey.
In January 2015, L.M. filed an answer to C.McG.’s petition, proposing
Children reside primarily with her in Watchung, and argued that the move to
Watchung did not qualify as a relocation because it did not significantly impair
C.McG.’s ability to exercise her custodial rights. No order was entered on the
docket regarding the issue of relocation, but L.M. moved to Watchung, and
Children, when staying with L.M., also lived in Watchung.
In July 2017, after a myriad of filings and fourteen custody hearings,2
the trial court read into the record an order in custody, providing that the
parties would share legal custody of Children, and that primary physical
custody would be with C.McG. during the school year, and partial physical
custody with L.M. on the first and third weekends of each month from Friday
at 5:00 p.m. to Sunday at 5:00 p.m. The physical custody would reverse in
the summer on the first Sunday after school ended. L.M. was to provide all
transportation. The custody order established additional provisions for
telephone calls, vacation, holidays, and activities.
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2Hearings were held April 27, 2015; July 6, 2015; October 22, 2015; October
23, 2015; January 7, 2016; May 9, 2016; May 10, 2016; July 21, 2016; July
22, 2016; October 11, 2016; December 23, 2016; January 31, 2017; July 24,
2017; and July 31, 2017.
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L.M. filed a motion for reconsideration on August 9, 2017. L.M. timely
appealed the custody order to this Court, but, on October 10, 2017, her appeal
was quashed. This Court noted per curiam that the July order was not final
due to the fact that no order had been entered on the docket on a prior petition
to relocate and because a written custody order had not been entered onto
the docket.3 See No. 2806 EDA 2017, Order, 10/10/17, at 1. The trial court
entered a written custody order on September 21, 2017, memorializing the
order read in court on July 31, 2017.
On November 6, 2017, C.McG. filed a petition for special relief, seeking
a finding of contempt and counsel fees against L.M. On November 8, 2017,
L.M. filed a complaint for a writ of mandamus in the Supreme Court of
Pennsylvania, requesting that the Court enter an order directing the trial court
to dispose of her “request to relocate.” The writ was subsequently denied
although L.M. was granted leave to file original process. See No. 176 MM
2017, Order, 12/11/17. On November 10, 2017, L.M. filed a petition
requesting that the trial court recuse itself. On November 28, 2017, following
a hearing, the trial court denied L.M.’s request for recusal. L.M. filed a motion
for reconsideration, which the trial court later denied.
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3 With regard to the outstanding petition for relocation, it remained
outstanding because a motion had been filed, but no order disposing of it had
been entered on the docket. See, e.g., R.L.P. v. R.F.M., 110 A.3d 201, 206
(Pa. Super. 2015) (noting that custody orders must be entered as separate
written orders or as separate sections of written opinions).
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L.M. filed a notice of appeal to this Court and accompanying statement
of errors complained of on appeal, specifically from the trial court’s order
entered November 28, 2017, which was the denial of L.M.’s request for the
trial court to recuse itself. On January 11, 2018, by per curiam order, this
Court quashed the appeal, as an order denying a motion to recuse is not a
final order, and because the petition for relocation remained outstanding. See
No. 73 EDA 2018, Order, 1/11/18.
On February 1, 2018, the trial court held a hearing on C.McG.’s petition
for special relief filed in November 2017. At the conclusion of the hearing, the
trial court found L.M. in contempt of the July 31, 2017 custody order and had
her committed to Bucks County Correctional Facility for ten days, ordered her
to write a letter to the court explaining how she would abide by the order in
the future, and to pay counsel fees in the amount of $12,265.75. See N.T.,
2/1/18, at 83-98.
On February 21, 2018, L.M. filed, in the trial court, a petition for special
relief to dispose of her outstanding request to relocate. On March 13, 2018,
the trial court issued a written order, entered on the docket, denying her
petition as moot, because there was no pending request to relocate. See
Order, 3/13/18, at 1.
L.M. timely filed a notice of appeal and accompanying statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Her appeal is now ripe for our review.
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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).
[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) (citation omitted).
With regard to the abuse of discretion standard,
[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
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).
“Our paramount concern in child custody cases is to determine the best
interests of the child.” In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016)
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(citations omitted). “The best-interests standard, decided on a case-by-case
basis, considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual well[-]being.” Saintz v. Rinker,
902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
The Child Custody Act sets forth the best interest factors that the trial
court must consider. See 23 Pa.C.S.A. § 5328(a)(1)-(16). See also J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (stating trial courts are required
to consider “[a]ll of the factors listed in section 5328(a) . . . when entering a
custody order.”)
In L.M.’s first issue, she claims that the trial court committed an error
of law and abuse of discretion in failing to analyze the relocation factors of 23
Pa.C.S.A. § 5337(h)(1)-(10) because, as she contends, her request to relocate
was still pending. See Appellant’s Brief, at 4-5, 15. L.M. acknowledges that
she was already living in New Jersey, and so the procedural requirements of
§ 5337 were not per se triggered; however, she argues that the relocation
factors should have been considered in the context of the custody proceeding
as Children traveled a significant distance. See id., at 15. We disagree.
As noted, the relocation petition remained “open” because no written
order was entered on the docket. The court’s order of March 13, 2018, closed
the open motion by noting that the issue was moot, as L.M. had already moved
to Watchung, had been living there for the past several years, and had herself
averred that the move to Watchung was not actually a relocation. We see no
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error or abuse of discretion in the court’s conclusion that there were no
remaining relocation issues to determine.
Next, L.M. claims that the trial court erred and abused its discretion in
its analysis of the sixteen custody factors of § 5328(a). She contends that the
court’s conclusions were unreasonable pursuant to the evidence of the record.
See Appellant’s Brief, at 25. Essentially, L.M. takes issue with certain
statements made by the trial court when analyzing the custody factors on the
record; L.M. characterizes these statements as unsupported by the record.
The court entered its analysis of the custody factors as follows:
We have to look at the factors mandated by the Supreme Court
of Pennsylvania in any custody case, and we’ll do so. Which party
is more likely to insure the health and safety of the child? The
answer is obvious. They both are well-equipped, and have in the
past and will in the future, insure the health and safety of both
children.
Which party is more likely to encourage and permit frequent and
continuing contact between the child and the other party? In my
view, any impediments to the relationship are mostly created by
[L.M.], who can find nothing positive about anything that [C.McG.]
can do. But I think on balance both parents are likely to permit
continuing contact between each because they know that it’s good
for the children.
Is there any abuse committed? Absolutely none. There’s no risk
of harm to any of these children. Can the parents perform parental
duties on behalf of [Lu.M.] and [E.M.]? Of course. Is there
extended family available? Yes, on both sides, and they are well-
invested in your children.
The next one I find to be especially important. Is there a need for
stability and continuity in the child’s education and his family life
and his community life? Yes. Where is that stability? Now and has
been in New Hope. That’s where they grew up. That’s where
they’ve been attached to. That’s where their roots remain.
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Watchung only becomes an issue because [L.M.] decided to move
there.
Sibling relationships? They have each other. They have a
biological sister here in New Hope. Is there a well-reasoned
preference of the child? No, of course not, and we wouldn’t
consider it because of their age and their lack of maturity. I’m
sure they would be happy no matter what the circumstances.
Has there been an attempt of one parent to turn the child against
the other parent? No, not seriously. None that we can discern.
Can [C.McG.] and [L.M.] maintain, on a consistent basis, a loving,
nurturing and consistent relationship with the children?
Absolutely. And at the same moment they are more than capable
of attending to the daily, physical, emotional and developmental
and educational needs of the children. Fortunately, there are no
special needs.
The proximity of the residences of the parties. It is the crucial
issue for this [c]ourt. An hour ride, 40 miles. It’s not
inconsequential. I think [L.M.] says to herself, I’ve chosen to live
there. No matter what, let’s have the children make that trek. As
the children get older, it’s not easier. Had you stayed in
Doylestown and had you moved to the New Hope area, and had
you even stayed in Macungie, the prior Order would have been
appropriate, but it’s no longer appropriate.
Are there abilities to make appropriate child-care arrangements?
Yes, strongly. They each have their mother. What [L.M.] sees as
a deficit is a plus. There is an au pair available to attend to the
needs of the children so [C.McG.] can spend the amount of time
that she should with them.
Is there conflict between the parties? Yes, there always is in
custody cases. Is this insurmountable? No. They don’t like each
other. I get it. Is there an inability to cooperate? No. There’s an
unwillingness to cooperate. Is there a history of drug or alcohol
abuse? I haven’t heard anything about [L.M.] drinking to excess
since, but if it’s on either side, it’s there. She’s the one who had
the DUI. She’s the one who blacked out. She’s the one who had
to go to the Caron Foundation. She’s the one who imbibed to
excess.
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The mental and physical condition of the parties. It is a neutral
factor. They are both physically and mentally equipped to be able
to deal with all the issues presented. There is no history of abuse
in any fashion, parent to parent, parent to child.
So these are the mandates I have to consider . . .
N.T., 7/31/17, at 111-115.
L.M., in arguing that the trial court’s findings are not supported by the
record, raises a myriad of issues regarding the court’s findings of fact and
credibility determinations including, but not limited to, the court’s findings
related to where the children grew up and have the most stability, which
parent was responsible for impediments to the parties’ relationships, factual
findings regarding L.M.’s use of alcohol and DUI, and other issues. See
Appellant’s Brief, at 27-39.
As we have observed, the trial court is required to consider all of the §
5328(a) factors in entering a custody order. While the court gives “weighted
consideration to those factors which affect the safety of the child” pursuant to
23 Pa.C.S.A. § 5328(a), we have acknowledged that “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.” M.J.M. v. M.L.G., 63 A.3d 331,
339 (Pa. Super. 2013) (citation omitted). Put simply, the amount of weight a
court gives any one factor is almost entirely discretionary.
Essentially, L.M. disputes the trial court’s findings of fact, determinations
of credibility, and the weight given to the voluminous evidence introduced at
fourteen hearings. She questions the court’s conclusions, inviting us to re-find
facts, re-weigh evidence, and re-assess the credibility of witnesses. This we
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cannot do. We do not disturb the trial court’s findings of fact and
determinations regarding the credibility and weight of the evidence absent an
abuse of discretion, which we do not find in this case.
Next, L.M. argues that the trial court committed an abuse of discretion
and an error of law in relying on a custody evaluation made five years earlier,
and not ordering a new evaluation. See Appellant’s Brief, at 40. She contends
that the trial court’s emphasis on the evaluation’s thoroughness, and the
weight put upon it, was inappropriate given the fact that there had been no
update or supplement made within six months to one year. See id., at 40-41.
In support of this argument, L.M.—impermissibly—cites to a single
unpublished decision of this Court, in a child support case, observing in dicta
that the trial court had not placed much weight upon a custody evaluation
performed three years prior to the master’s hearing. See Appellant’s Brief at
4 (citing Carter v. Carter, No. 3817 EDA 2016 (Pa. Super., filed 11/30/17)
(unpublished memorandum)). L.M. has cited no case law or any legal authority
to support her claim, nor developed her argument beyond two paragraphs.
Accordingly, we find that L.M. has waived this claim. See In re Estate of
Whitley, 50 A.3d 203, 209-210 (Pa. Super. 2012) (noting that failure to cite
to relevant legal authority constitutes waiver of the claim on appeal).
L.M. combines her next three issues into one. She contends that she
was prejudiced by a direct conflict of interest; that her counsel was ineffective;
and that the trial court did not respond to the harassment and intimidation of
her witnesses by C.McG.’s counsel. See Appellant’s Brief, at 42.
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With regard to the conflict of interest, L.M. avers that she was prejudiced
by the fact that one of her prior five attorneys, Melanie Wender, Esquire, who
represented her from December 2014 to October 2015, joined the law firm of
counsel for C.McG., and Attorney Wender had not given L.M. notice of the
potential conflict.4 See id. L.M. cites generally to two rules of professional
conduct to support her argument, but does not cite to case law to further
develop her argument regarding a conflict of interest or the prejudice caused
thereby.
With regard to her claim of ineffective assistance, L.M. does not
elaborate which of her five attorneys counseled her ineffectively, or provide
authority to support the application of a standard applied to the representation
of attorneys in criminal matters to a regular custody matter.
With regard to the alleged harassment by counsel, L.M. states that
counsel for C.McG. followed L.M. and her wife into the hallway and said, “you
better watch yourself,” called L.M. a liar on the witness stand, and
impermissibly interacted with unnamed witnesses of L.M.’s while they were
under oath. See id., at 42. L.M. does not cite to any authority to support this
argument, or indeed, develop any argument beyond this bald statement of
fact.
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4L.M. also references a disciplinary board complaint filed in this matter. See
Appellant’s Brief, at 43. However, because the complaint is not a part of the
certified record, we may not consider it on appeal. See Brandon v. Ryder
Truck Rental, Inc., 34 A.3d 104, 106 n.1 (Pa. Super. 2011).
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Here, L.M.’s failure to develop her arguments, cite to pertinent portions
of the record to support her claims, or provide legal authority to support her
averments, precludes us from review of her issues, and results in the waiver
of her claims. See Estate of Whitley, 50 A.3d at 209-210.
Finally, L.M. combines her last two issues to argue that the trial court’s
conclusions were manifestly unreasonable and the product of partiality and
bias. Although L.M. identifies comments made by the trial court that she
contends show its bias, she does not cite to the pertinent place in the record
where either these remarks or objections to the same may be found. 5 Again,
L.M. impermissibly cites to a single, unpublished case to define, generally, an
abuse of discretion. See Appellant’s Brief, at 44. L.M. cites no case law
regarding bias, recusal, or other relevant legal authority. Accordingly, she has
waived this claim. See Estate of Whitley, 50 A.3d at 209-210.
Order affirmed.
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5 While all appellants are required to make appropriate references to the
record, see Pa.R.A.P. 2119(c), this lack is particularly egregious considering
the voluminous nature of the notes of testimony. Cf. Philips v. Selig, 959
A.2d 420, 428 (Pa. Super. 2008) (declining to find waiver where failure to
comply with appellate rules has not impeded our ability to review the issues).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2018
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