Batterman, C. v. Santo, S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHAD BATTERMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SILVIA SANTO : No. 1532 EDA 2021
Appeal from the Order Entered June 16, 2021
In the Court of Common Pleas of Montgomery County
Civil Division at No: 2019-06877
CHAD BATTERMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SILVIA SANTO : No. 1703 EDA 2021
Appeal from the Order Entered July 16, 2021
In the Court of Common Pleas of Montgomery County
Civil Division at No: 2019-06877
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 10, 2022
Chad Batterman (“Father”) appeals pro se from the child custody orders
entered on June 16, 2021, and July 16, 2021. In the June 16, 2021 order,
the trial court ruled on a dispute involving a dance recital Father scheduled for
one of the parties’ children and a vacation Silvia Santo (“Mother”) scheduled
for the same time. The court further denied Father’s request to find Mother
in contempt. In the July 16, 2021 order, the court made a final custody award,
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maintaining sole legal and primary physical custody of the parties’ children
with Mother and adjusting Father’s partial physical custody schedule. The
court again denied Father’s request to find Mother in contempt. In reviewing
these matters, we also consider Father’s pro se “Motion for Reconsideration”
of our order consolidating his appeals. We affirm the June 16, 2021, and July
16, 2021 orders and deny Father’s motion.
FACTUAL AND PROCEDURAL HISTORY
This case has a lengthy and tortuous history. For the sake of brevity,
we note only that Father and Mother married in November 2014 and separated
in November 2017. The parties had two children together, C.B., a female born
in October 2015, and D.B., a male born in October 2017 (collectively, “the
Children”). Mother commenced divorce proceedings, but our review of the
record does not disclose whether those proceedings remain ongoing.
The parties’ custody litigation began in Philadelphia County. Pursuant
to a custody order entered by the Philadelphia County Court of Common Pleas,
dated March 6, 2019, Mother received sole legal and primary physical custody
of the Children. Father received partial physical custody on the first, third,
and (if available) fifth weekend of each month, from Thursday at 4:00 p.m.
until Monday at 9:00 a.m. During weeks that Father would not have weekend
custody, he received partial physical custody on Thursday from 4:00 p.m. until
8:00 p.m. The Philadelphia trial court entered an amended custody order,
dated May 3, 2019, which made no substantive changes to this schedule.
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Meanwhile, venue over the dispute transferred to Montgomery County,
because Mother lived there, and neither party continued to live in Philadelphia
County. Extensive litigation ensued over the next two years, due in large part
to Father’s myriad court filings and discovery disputes he initiated with two
police departments and a pediatrician’s office.
Relevant for purposes of this appeal, the trial court entered an order on
October 15, 2020, pursuant to which the parties agreed to resolve all custody
issues between them by withdrawing their outstanding pleadings and leaving
the existing May 3, 2019 order in place. This resolution of the parties’ dispute
lasted only fleetingly, as Father filed pro se petitions for contempt on October
23, 2020, October 26, 2020, and October 30, 2020, followed by two pro se
amended petitions for contempt on December 9, 2020. Father filed a pro se
petition to modify custody on November 25, 2020, in which he requested sole
legal and primary physical custody of the Children. He then filed yet another
pro se petition for contempt on February 26, 2021.
The trial court conducted a consolidated hearing on Father’s pleadings
over five days, on January 25, 2021, January 26, 2021, February 19, 2021,
March 15, 2021, and March 16, 2021. Following the hearing, on March 17,
2021, the court entered an order indicating that it was taking the matter under
advisement.
While the trial court’s resolution remained pending, yet another dispute
arose between the parties. On May 12, 2021, Father filed a pro se “Emergency
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Motion Regarding Dance Recital,” averring that a conflict had arisen between
a dance recital he arranged for C.B. and a vacation Mother planned for June
2021. Father later filed a pro se amended version of this pleading on June 2,
2021, and a pro se “Emergency Motion for Special Relief for the Denial of
Mother’s Vacation and Contempt” on June 4, 2021. He filed a pro se amended
pleading requesting special relief and contempt on June 15, 2021. Generally,
Father requested that the court prohibit or limit Mother’s planned vacation or,
in the alternative, find her in contempt of the May 3, 2019 order for failing to
provide him with start and end dates of her vacation thirty days in advance.
The trial court conducted a hearing on June 16, 2021, and entered an
order that same day, which denied as moot Father’s request to ensure C.B.
participated in her dance recital by precluding Mother’s vacation. The court
granted Father’s request to limit Mother’s vacation in part, in that it directed
Mother to return Child to Father by 6:00 p.m. on June 19, 2021. Further, the
court granted Father three days of makeup custody time during the summer
of 2021. The court denied Father’s request to find Mother in contempt.
On July 12, 2021, Father filed a pro se motion for reconsideration of the
June 16, 2021 order. The trial court denied reconsideration on the same day.1
Father timely filed a pro se notice of appeal on July 13, 2020, along with a
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1 Curiously, the motion for reconsideration continued to appear as a pending
pleading on scheduling orders for months afterward. See, e.g., Amended
Order – Scheduling, 9/16/21.
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concise statement of errors complained of on appeal.2 This Court assigned
Father’s appeal docket number 1532 EDA 2021.
While the parties litigated their dispute regarding the dance recital and
Mother’s vacation, the trial court had not yet entered an order resolving the
five-day custody hearing from January to March 2021. In addition, the parties
continued to file new pleadings. Mother filed an emergency custody petition
on June 25, 2021, averring Father was refusing to return the Children to her
care pursuant to the May 3, 2019 order. She filed a praecipe to withdraw the
emergency petition on June 29, 2021. Father filed a pro se petition for special
relief on July 13, 2021, requesting sole legal custody and that the Children be
enrolled in a camp program his family operates.3
At last, the trial court entered its final custody order on July 16, 2021.
The order maintained sole legal and primary physical custody of the Children
with Mother and adjusted Father’s partial physical custody award. The order
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2 The June 16, 2021 order is appealable, as it denied Father’s request for a
finding of contempt with respect to the May 3, 2019 final order. See Schultz
v. Schultz, 70 A.3d 826, 828-29 (Pa. Super. 2013) (“[A]n order refusing to
find an individual in contempt is appealable only where the respondent failed
to comply with a prior final order.”). To the extent portions of the June 16,
2021 order not dealing with contempt were interlocutory and unappealable at
the time Father filed his notice of appeal, the subsequent entry and appeal of
the final custody order, described below, rendered those portions reviewable.
In re Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa. Super. 2012) (citing
Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa. Super. 2008), reargument denied
(Sept. 19, 2008), appeal denied, 989 A.2d 918 (Pa. 2009)).
3The parties also filed a slew of contempt petitions against each other between
June 25, 2021, and August 14, 2021. These petitions remained pending at
the time this Court received the certified record.
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awarded Father partial physical custody every Tuesday from 8:00 a.m. until
Wednesday at 7:00 p.m. and every other weekend from Friday at 5:00 p.m.
until Monday at 8:00 a.m. Moreover, the order explained, although “certain
actions of each of the parties ha[ve] risen to the level of contempt,” the court
was “choos[ing] to look forward and not back” and denied the outstanding
contempt petitions, with the aspiration that the parties would resolve their
differences more amicably going forward. Order, 7/16/21, at 8-9. The court
issued separate findings of fact, which further explained its decision.
In essence, the trial court’s findings focused on the parties’ inability to
coparent and hostility toward each other. While the court found Mother was
not without fault for this situation, it concluded Father bore the greater share
of the blame, due primarily to his excessive litigiousness. Findings of Fact,
7/16/21, at 2-5, 9. The court expressed hope that the parties would improve
their coparenting in the future but reasoned that their present combativeness
precluded a more equal custody award. Id. at 4, 11-12.
Mother filed a motion for reconsideration of the July 16, 2021 order on
August 13, 2021. Father then filed timely pro se notice of appeal on August
16, 2021,4 along with a concise statement of errors complained of on appeal.
He filed a pro se amended concise statement on August 17, 2021, which made
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4 Thirty days after the trial court entered its order was Sunday, August 15,
2021. Therefore, Father timely filed his notice of appeal on Monday, August
16, 2021. See Pa.R.A.P. 903, Note (observing our Rules of Appellate
Procedure incorporate 1 Pa.C.S. § 1908 “relating to . . . the omission of the
last day of a time period which falls on Saturday, Sunday or legal holiday.”).
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only superficial wording changes to the claims he was presenting. It does not
appear that the trial court ruled specifically on the motion for reconsideration.
This Court assigned Father’s second appeal docket number 1703 EDA 2021.5
FATHER’S APPEAL AT 1532 EDA 2021
We begin by considering Father’s appeal at 1532 EDA 2021. He presents
the following claims for our review:
Did the trial court err[] as a matter of law by the following:
1. by failing to find [Mother] in contempt of the May 3, 2019
custody order,
2. by modifying the May 3, 2019 custody order without prior
notice,
3. by modifying the May 3, 2019 custody order at a contempt
hearing when there was no pending petition to modify custody
heard at the hearing, and
4. by allowing [Mother] to submit their exhibits late, not in
compliance with the June 7, 2021 scheduling order[?]
Father’s Brief (1532 EDA 2021) at 6 (emphasis and unnecessary capitalization
omitted) (unnumbered pages).6
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5We entered an order consolidating Father’s two appeals on January 11, 2022.
Father filed a pro se “Motion for Reconsideration” of our consolidation order
on January 25, 2022. Because consolidation eases our review and disposition
of Father’s appeals and causes him no prejudice, we deny his motion.
6 We note with disapproval that Father does not divide the argument section
of brief into subsections corresponding to his statement of questions involved.
See Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part--in
distinctive type or in type distinctively displayed--the particular point treated
therein[.]”).
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In Father’s first claim, he challenges the trial court’s finding that Mother
was not in contempt of the May 3, 2019 order by going on vacation with the
Children rather than facilitating C.B.’s participation in the dance recital that
he arranged. We review the court’s finding pursuant to an abuse of discretion
standard of review. Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001).
To support a finding of civil contempt,7 a court must determine “(1) that the
contemnor had notice of the specific order or decree which she is alleged to
have disobeyed; (2) that the act constituting the contemnor’s violation was
volitional; and (3) that the contemnor acted with wrongful intent.” Harcar v.
Harcar, 982 A.2d 1230, 1235 (Pa. Super. 2009).
Father argues Mother was in contempt of the May 3, 2019 order because
she did not provide him with notice of her vacation thirty days in advance with
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7 A trial court may order civil or criminal contempt. In the Interest of E.O.,
195 A.3d 583, 586 (Pa. Super. 2018) (quoting In the Interest of C.W., 960
A.2d 458, 466 (Pa. Super. 2008)). If the court’s dominant purpose in finding
contempt is to coerce compliance by the contemnor, the adjudication is civil
in nature. Id. If the court’s dominant purpose is to punish disobedience by
the contemnor, the adjudication is criminal in nature. Id.We apply the standards applicable to a finding of civil contempt here, as
this case involves a private party requesting contempt in an ongoing action to
obtain relief for his own benefit. See Warmkessel v. Heffner, 17 A.3d 408,
414 (Pa. Super. 2011), appeal denied, 34 A.3d 833 (Pa. 2011) (quoting Stahl
v. Redcay, 897 A.2d 478, 486 (Pa. Super. 2006), reargument denied (May
18, 2006), appeal denied, 918 A.2d 747 (Pa. 2007)) (discussing factors
“generally said to point to a civil contempt”). In addition, Father sought civil
contempt in his petitions or included language in his petitions asking the trial
court to enter an order “compelling [Mother] to comply[.]” See, e.g., Petition
for Contempt and Enforcement, 10/23/20, at 2-3; Emergency Petition for Civil
Contempt, 10/26/20, at 1.
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the specific start and end dates. Father’s Brief (1532 EDA 2021) at 7-9. He
further maintains Mother was in contempt because her vacation caused an
extension of her custody time and reduction of his custody time. Id. at 8-11.
Father’s claim relies on the vacation provision of the May 3, 2019 order, which
provides, in relevant part, that the parents would each “be entitled to two []
non-consecutive weeks of vacation with the Children upon thirty [] days
written notice to the other parent. A week is defined as seven [] days, which
shall not be used to extend their regular custodial time.” Order, 5/3/19, at 4
(unnecessary capitalization omitted).
The trial court explained in its opinion that it declined to find Mother in
contempt because it did not believe that she acted with wrongful intent. Trial
Court Opinion (1532 EDA 2021), 9/13/21, at 7-9. The court cited Mother’s
testimony regarding her numerous attempts to compromise with Father after
the parties discovered the conflict between the vacation and the dance recital.
Id. In addition, the court reasoned that the vacation provision of the May 3,
2019 order was ambiguous. Id. While the order provided that Mother could
exercise two nonconsecutive weeks of vacation with Child each year, it further
provided Mother’s vacation could not “extend [her] regular custodial time.”
Id. at 6 (quoting Order, 5/3/19, at 4) (capitalization omitted). This made it
impossible for Mother to exercise a full week of vacation with Child without
violating the order, the court observed, since Father was entitled to regular
custody of Child under the order at least once per week. Id. at 6-7.
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We discern no abuse of discretion in the trial court’s analysis. The record
indicates that Mother first notified Father she would be taking a vacation on
the same weekend as the June 2021 dance recital on April 23, 2021, more
than thirty days in advance. N.T., 6/16/21, at 57, 85; Supplemental Record,
12/6/21.8 Further, Mother testified she attempted repeatedly to compromise
with Father to resolve the parties’ disagreement. N.T., 6/16/21, at 86-90.
These attempts at compromise included a proposal Mother sent Father on May
4, 2021, which included specific start and end dates for her vacation. See
Supplemental Record, 12/6/21 (“I would start our vacation . . . Sunday, June
13th to Sunday, June 20th, [C.B.] would be here to do the recital[, and] the
kids still get a great vacation, seems like a win win. Are you ok with this?”).
This again was more than thirty days in advance. While Mother did ultimately
act contrary to the May 3, 2019 order by taking a vacation that extended her
regular custodial time, this evidence supports the court’s finding that she did
not act with wrongful intent.
It was also reasonable for the trial court to weigh the ambiguity of the
May 3, 2019 order against a finding of contempt. As the court observed, the
order provided that the parties would have seven-day periods of vacation but
also that vacation could not extend a party’s regular custody time. This caveat
made it impossible for Mother to have a seven-day vacation, since Father
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8 This Court received a supplemental record on December 6, 2021, containing
exhibits from the June 16, 2021 hearing, but the exhibits are not individually
labeled.
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would always have custody of the Children at least once per week. See Sutch
v. Roxborough Memorial Hosp., 142 A.3d 38, 67 (Pa. Super. 2016), appeal
denied, 163 A.3d 399 (Pa. 2016) (quoting Stahl, 897 A.2d at 489) (“Because
the order forming the basis for civil contempt must be strictly construed, any
ambiguities or omissions in the order must be construed in favor of the
defendant. In such cases, a contradictory order . . . will not serve as the basis
for a finding of contempt.”).
Next, Father argues in his interrelated second and third claims that the
trial court impermissibly modified the May 3, 2019 custody order following the
contempt hearing without prior notice and when there was no pending custody
modification petition.9 He contends the court had no power to deviate from
the terms of the May 3, 2019 order and simply should have enforced it as it
was written, which would have meant limiting Mother to less than a full seven
days of vacation and ordering her to return the Children to him for his regular
custody time beginning on Thursday, June 17, 2017. Father’s Brief (1532 EDA
2021) at 11-13. Father maintains that the court instead modified the order
by directing Mother to return the Children on the evening of Saturday, June
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9 We note that different trial judges entered the two orders on appeal in this
matter. The Honorable Richard S. Haaz entered the order on appeal at 1532
EDA 2021, relating to the dance recital and Mother’s vacation, while the
Honorable Melissa S. Sterling entered the order on appeal at 1703 EDA 2021,
resulting from the five-day modification hearing. Thus, while there actually
was a modification proceeding pending at the time Judge Haaz entered the
June 16, 2021 order, Judge Haaz had not been involved.
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19, 2019, resulting in Father exercising only part of his regular custody time.
Id.Our case law is clear a trial court may not modify custody at a contempt
hearing without explicit notice to the parties that custody rights are at stake.
J.M. v. K.W., 164 A.3d 1260, 1267-70 (Pa. Super. 2017) (en banc). In this
case, by contrast, the record demonstrates contempt was not the only matter
at issue when the court entered its June 16, 2021 order. The court addressed
two of Father’s outstanding pleadings when entering its order, which included
his “Amended Emergency Motion for Special Relief Regarding Dance Recital”
and “Amended Emergency Motion for Special Relief for the Denial of Mother’s
Vacation and Contempt.” In the pleadings, Father asked that the court ensure
C.B.’s participation in her dance recital and prevent Mother from continuing
her vacation into his custody time. At the time of the hearing, Father did not
dispute that his request to ensure C.B.’s participation in her dance recital was
moot, since the recital had already occurred. N.T., 6/16/21, at 6. He asked,
nonetheless, that the court order Mother to return from her vacation early, so
that it would not continue into his custody time. Id. at 7. Therefore, because
Father himself placed custody at issue by requesting that the court enter an
order resolving the parties’ vacation dispute, no relief is due.10
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10It was permissible for the trial court to enter the custody portion of its order
pursuant to our Rules of Civil Procedure, which provide, “[a]t any time after
commencement of the action, the court may on application or its own motion
grant appropriate interim or special relief. The relief may include, but is not
(Footnote Continued Next Page)
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Father’s fourth and final claim at 1532 EDA 2021 is that the trial court
erred by permitting Mother to submit exhibits late and not in compliance with
its June 7, 2021 scheduling order. Father argues the court’s scheduling order
required the parties to submit exhibits three business days prior to the hearing
scheduled for Wednesday, June 16, 2021, at 9:30 a.m. Father’s Brief (1532
EDA 2021) at 14. Father insists Mother violated the order by submitting her
exhibits on Sunday, June 13, 2021, at 5:35 p.m. Id.
We agree with the trial court that Father waived this claim by failing to
make a timely and specific objection at the hearing, as the following excerpt
from the record reveals:
THE COURT: All right, [Father]. You have the floor.
[Father:] Just some housekeeping, just a normal record. I
am not sure if you are aware, pursuant to your June 17 [sic]
scheduling order, we had to submit exhibits by three business
days, which is Friday. [Mother’s counsel] sent it on Friday 5:30
p.m., which would only by two business days before. I would like
to note that on the record. I object to them being --
THE COURT: Okay. If he moves them in, you make an
objection and I will make a ruling at that time.
[Father:] Okay. . . .
***
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limited to, the award of temporary legal or physical custody[.]” Pa.R.C.P.
1915.13; see also J.M., 164 A.3d at 1269 (explaining, “that absent an award
of special relief under Rule 1915.13 . . . it is an abuse of discretion for the trial
court to transfer custody from one party to the other as a contempt sanction”).
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THE COURT: . . . . [Mother’s counsel], do you have anymore
evidence to present?
[Mother’s counsel:] No. Just move the admission of Exhibit
M-1 through M-4?
THE COURT: Any objection to M-1 through M-4?
[Father:] No. No objection.
THE COURT: They are admitted into the record.
N.T., 6/16/21, at 9, 125.
As we have explained, failure to make a timely and specific objection in
the trial court will result in waiver on appeal. In the Interest of L.V., 209
A.3d 399, 418 (Pa. Super. 2019) (quoting In re S.C.B., 990 A.2d 762, 767
(Pa. Super. 2010)). “[O]ne must object to errors . . . at the earliest possible
stage of the adjudicatory process to afford the jurist hearing the case the first
occasion to remedy the wrong and possibly avoid an unnecessary appeal to
complain of the matter.” Id. Because Father stated expressly on the record
that he did not object to the admission of Mother’s exhibits, he is not entitled
to relief.
Based on the foregoing analysis, we conclude Father’s appeal at 1532
EDA 2021 is meritless, and we affirm the June 16, 2021 order.
FATHER’S APPEAL AT 1703 EDA 2021
We next direct our attention to Father’s appeal at 1703 EDA 2021. His
brief presents the following claims:
The [trial] court erred in its Order of July 16, 2021, for the
following reasons:
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1. The [trial court] erred as a matter of law by awarding Mother
primary physical custody of the parties’ children.
2. The [trial court] erred as a matter of law by awarding Mother
sole legal custody of the parties’ children.
3. The [trial court] erred as a matter of law by failing to rule on
contempt petitions before the court, failing to find [Mother] in
contempt and failing to award make-up time and filing fees to
[Father].
4. The [trial court] erred as a matter of law by failing to enter an
order regarding the [C]hildren’s school and summer camp
consistent with the [C]hildren’s best interest and best options
available to them.
5. The [trial court] erred as a matter of law by failing to equitably
distribute the financial obligations and holiday time between the
parties’. [sic]
6. The [trial court] erred as a matter of law by denying [Father’s]
motion to allow more time for contempt’s [sic] to be fully heard
and stay all pending matters.
7. The [trial court] erred as a matter of law by substantially
limiting the custody hearing, evidence, subpoenas and witnesses,
including experts, presented by [Father].
8. The [trial court] erred as a matter of law by refusing to recuse
herself from the parties’ case despite [Father’s] petition for
recusal.
9. The [trial court] erred as a matter of law by denying Father’s
motion in limine to exclude reference or evidence of [Father’s]
driver’s license.
10. The [trial court] erred as a matter of law by denying Father’s
motion in limine to exclude reference or evidence of support.
Father’s Brief (1703 EDA 2021) at 11-12 (unnecessary capitalization omitted)
(unnumbered pages).
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Preliminarily, we address Father’s noncompliance with our law regarding
appellate briefs. Pa.R.A.P. 2135(a)(1) provides that a principal brief generally
should not exceed fourteen thousand words, and that a typed principal brief
over thirty pages in length must contain a certificate of compliance. Father’s
principal brief at 1703 EDA 2021, excluding supplementary matter, is ninety-
seven pages long and does not include a certificate of compliance. According
to a word processor, the brief includes nearly forty thousand words, excluding
the same supplementary matter.11 Father again fails to comply with Pa.R.A.P.
2119(a), in that he organizes the argument section of his brief in a manner
inconsistent with his statement of questions involved. Cf. Pa.R.A.P. 2119(a)
Further, Father fails to develop several claims with citation to legal authority.
See In re M.Z.T.M.W., 163 A.3d 462, 465 (Pa. Super. 2017) (explaining that
this Court will not review a claim unless it is developed in the argument section
of an appellant's brief and supported by citation to relevant legal authority).
While Father is proceeding pro se, we must emphasize this status does
not relieve him of the obligation to comply with our appellate rules. Jiricko
v. Geico Ins. Co., 947 A.2d 206, 213 n.11 (Pa. Super. 2008), appeal denied,
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11As a further example of Father’s extreme prolixity, we note that Mother filed
only a short appellee’s brief in this Court indicating she was relying on the trial
court’s explanation of its decision. In response, Father filed a seventy-page
reply brief. Cf. Pa.R.A.P. 2135(a)(1) (directing that, generally, “a reply brief
shall not exceed 7,000 words . . . . A party shall file a certificate of compliance
with the word count limit if the . . . reply brief is longer than 15 pages when
prepared on a word processor or typewriter.”).
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958 A.2d 1048 (Pa. 2008). Although this Court is willing to construe Father’s
pro se materials liberally, “pro se status confers no special benefit upon [an]
appellant. To the contrary, any person choosing to represent himself in a legal
proceeding must, to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing.” In re Ullman, 995 A.2d 1207, 1211-
12 (Pa. Super. 2010), reargument denied (July 13, 2010), appeal denied, 20
A.3d 489 (Pa. 2011) (citations omitted).
Given Father’s noncompliant principal brief, we could dismiss his appeal
in its entirety. See Pa.R.A.P. 2101 (“[I]f the defects are in the brief . . . of
the appellant and are substantial, the appeal or other matter may be quashed
or dismissed.”); Krauss v. Trane U.S. Inc., 104 A.3d 556, 584 (Pa. Super.
2014) (“When deficiencies in a brief hinder our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or find certain issues to
be waived.”). Nevertheless, in the interest of justice, and mindful that this is
a Children’s Fast Track appeal, we will endeavor to address Father’s claims to
the extent we are able to discern them.
We review the custody order pursuant to an abuse of discretion standard
of review. V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (quoting
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012)). This Court must defer
to the trial court’s credibility and weight of the evidence determinations, as
the court was able to view and assess the witnesses’ testimony firsthand. Id.- 17 -
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We must accept the court’s factual findings if the record supports them, but
we need not accept the court’s deductions or inferences from its findings. Id.When entering a custody order, the trial court must base its decision on
the child’s best interests. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super.
2014) (citation omitted). The factors that courts must consider when ordering
custody are set forth at 23 Pa.C.S.A. § 5328(a), as follows:
(a) Factors.--In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is
a continued risk of harm to the child or an abused
party and which party can better provide adequate
physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(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
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where reasonable safety measures are necessary to
protect the child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another. A party’s effort to protect a child from
abuse by another party is not evidence of
unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
In his interrelated first, second, and fourth claims, Father challenges the
trial court’s credibility determinations and findings of fact, arguing the court
should have viewed the evidence differently and awarded him primary physical
and sole legal custody of the Children. Father contends, in essence, that he
has supported the Children’s relationship with Mother, while Mother has tried
to limit the Children’s relationship with him. Father’s Brief (1703 EDA 2021)
at 12-23. He also maintains the Children want to spend more time with him.
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Father criticizes Mother’s parenting in various ways, alleging she mistreats the
Children. Id. at 16-19. He complains that Mother has made poor decisions
with respect to the Children’s education, and that the Children should attend
the preschool and camp program that his family operates as well as a school
district where he resides.12 Id. at 14, 17-21, 83-87. Regarding the award of
sole legal custody in particular, Father contends that Mother does not consult
him or keep him informed but acts out of animosity and has used the award
to exclude Father from the Children’s major life decisions. Id. at 24-27.
As we summarized above, the trial court considered the Section 5328(a)
factors in its findings of fact, focusing on the parties’ inability to coparent and
hostility toward each other. While the court found Mother bore some blame,
it concluded that Father was the party most responsible for the situation, due
primarily to his excessive litigiousness. Findings of Fact, 7/16/21, at 2-5, 9.
While the court expressed hope the parties coparenting would improve in the
future, it reasoned that their present combativeness precluded a more equal
award of custody. Id. at 4, 11-12. The following is illustrative of the court’s
findings:
While ordinarily this might be a case for a 50/50 sharing of
custody, and we hope that may someday be the case, Father’s
behavior is and has been his own worst enemy. He files pleading
after pleading, not only against Mother, but against her parents,
against the local police departments where custody exchanges
take place, and against the doctors who provide medical care for
____________________________________________
12Father indicates in his brief that he “does have residency” in three different
school districts. Father’s Brief (1703 EDA 2021) at 84.
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his [c]hildren. We find particularly sad the fact that Father has
badgered (with over 30 emails) the very professionals who
provide care for his [c]hildren until, although they would like to
continue to provide that care, they cannot do so due to Father’s
repeated impositions on their staff in his search for the most
minute and irrelevant details on the relationship between Mother
and the pediatric practice which have nothing to do with his
[c]hildren’s care.
***
. . . [W]e must be guided by what is in the best interest of the
Children. Constant court battles over custody, support, discovery,
vacations, religion and a plethora of other issues are destructive
to these [c]hildren who are regularly exposed to the stress . . .
and cannot be unaffected by this. While Mother is not without
blame and Father has presented many legitimate issues to the
[c]ourt, we find that Father’s unending litigious nature and need
to win precludes us from finding the parties equal . . . . Fighting
over every perceived slight is not a way to show a parent’s love
for their [c]hildren or to create a healthy environment in which
they can grow.
***
We do not make our decision today lightly, particularly given
the four-year, non-stop battle over these small children and the
continued abuse of court time and resources. It appears to us
that their spiteful litigation has almost become a full-time job for
these parents. We know Father seeks an equal parenting role,
but we do not believe that would be the correct decision at this
time. These parents must learn to co-parent as peacefully as they
possibly can. Once they reach that state of mind – that their
children are more important than their battles – we are hopeful
that they will be able to jointly make the right decisions for the
Children. But for now, one parent must have the ability to make
final decisions on critical issues such as health and education and,
having heard 5 days of testimony, reviewed both parties’ exhibits
and considered all the evidence before us, we believe the Order
we have issued today is the fairest we can provide.
Id. at 4-12.
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Our review of the record supports the trial court’s decision. Tellingly,
the hearing began on January 25, 2021, with argument addressing Father’s
ongoing discovery disputes with third parties, which included his attempt to
subpoena records from the pediatrician’s office that the Children attend. The
office’s counsel appeared at the hearing and maintained she and the office’s
staff had spent “untold hours communicating” with Father. N.T., 1/25/21, at
21. Counsel indicated that Father received the Children’s medical records, as
well as records of her personal communications with Mother. Id. at 22-23.
Father still was not satisfied, counsel explained, and sent her “what looked
like interrogatories with . . . 30, 40 questions that he was demanding that I
answer, and I didn’t respond, and now he subpoenaed me to be here today.”
Id. at 23. She cautioned the office “can’t afford to stay in these battles. And
so if [Father] is permitted to keep serving subpoenas and to keep harassing
[the office] and to keep harassing me, they’re going to have to say they can’t
care for these children anymore.” Id.
The record indicates Father’s litigious tendencies manifest even outside
of court in personal communications with Mother. The parties send messages
to one another using the “Our Family Wizard” electronic system. During her
testimony, Mother reported Father had sent her approximately two thousand
one hundred messages since the parties began using Our Family Wizard in
February 2018, which amounted to an average of fifty-eight messages per
month. N.T., 2/19/21, at 141-42. The messages were often lengthy. Father
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acknowledged that his messages sometimes contain twenty or more questions
for Mother to answer. Id. at 220; 1/26/21, at 191-92; N.T., 3/15/21, at 261.
The parties’ custody evaluation, which the trial court admitted into evidence,
and some of which Mother read while testifying, described Father’s messages
as “very inappropriate and not conducive to reciprocal communication. His
questions are often demanding, numerous, numbered, have an accusatory
tone, and contain deadlines by which [Mother] is to provide the information.
His communication style can be described as nothing short of adversarial.”
N.T., 3/16/21, at 236-37. While Father sometimes invites Mother to joint
activities, the evaluation added, the invitations to these activities frequently
appear “in lengthy messages that are replete with accusations, insults, and
demeaning language.” Id. at 239.
Perhaps the most troubling aspect of Father’s litigiousness is the way in
which he has attempted to use the courts to impair Mother’s relationship with
the Children. The record reveals that Father filed a series of unfounded child
abuse reports against Mother, apparently prior to the entry of the final May 3,
2019 order in Philadelphia. N.T., 3/16/21, at 147-49, 221-225, 239-40. The
May 3, 2019 order is replete with findings regarding these reports. See, e.g.,
Order, 5/3/19, at 6 (“Father has repeatedly abused child protective services
. . . in attempts to secure tactical advantages in this custody litigation and to
attempt to circumvent interim custody orders. All child protective services
. . . have found allegations of abuse unfounded.”) (unnecessary capitalization
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omitted). Father persisted, nevertheless, in defending this behavior and
characterizing Mother as an abuser during the hearings in the matter at bar.
See N.T., 3/15/21, at 18-21; N.T., 3/16/21, at 76, 270. Even before this
Court, Father asserts in his brief and reply brief that Mother engaged in abuse.
See Father’s Brief (1703 EDA 2021) at 7, 16, 37, 78; Father’s Reply Brief
(1703 EDA 2021) at 11-12, 36-38, 51, 58 (unnumbered pages).
Ultimately, Section 5328(a)(13) directs that trial courts consider “[t]he
level of conflict between the parties and the willingness and ability of the
parties to cooperate with one another” when rendering a custody award. 23
Pa.C.S.A. § 5328(a)(13). Our review of the record amply supports the court’s
conclusion that this is a high-conflict case with poor cooperation between the
parties, due primarily to Father’s litigiousness. Thus, it was within the court’s
discretion to award sole legal and primary physical custody of the Children to
Mother. See P.J.P. v. M.M., 185 A.3d 413, 420 (Pa. Super. 2018) (affirming
the trial court’s award of primary physical custody to the appellee where the
record supported the court’s finding that “the high level of conflict between
[the parties’] would make a shared custody arrangement untenable. . . . The
record confirms that they struggle to communicate with each other, and have
been unable to resolve their interpersonal disputes.”).13
____________________________________________
13In the July 16, 2021 order, the trial court granted Father’s request that the
Children attend his family’s preschool and camp program in part, in that it
(Footnote Continued Next Page)
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In Father’s third claim, he contends that the trial court erred by failing
to rule “meaningfully” on his contempt petitions, by failing to find Mother in
contempt, and by failing to award him “make-up time and filing fees.” Father’s
Brief (1703 EDA 2021) at 11, 28. The first portion of Father’s claim fails, as
the court expressly denied his contempt petitions. See Order, 7/16/21, at 8-
9 (“[W]e are denying all petitions for contempt . . . . This order resolves all
outstanding pleadings . . . filed by either of the parties . . . before the date of
this order[.]”) (unnecessary capitalization and emphasis omitted, italics in
original). We conclude Father waived the remainder of this claim by failing to
develop it a manner capable of appellate review.
Here, Father filed four contempt petitions and two amended contempt
petitions, which were at issue when the trial court entered its order of July 16,
2021. He fails to specify in the argument section of his brief, however, which
of his several petitions his argument pertains to, what the relevant allegations
of contempt were, and how the evidence at the hearing was such that the
court abused its discretion by not finding contempt. Instead, Father indicates
____________________________________________
directed that the Children attend the camp program at least three weeks each
summer and be allowed to attend the preschool during Father’s custodial time.
Order, 7/16/21, at 3. Father appears to argue, in relevant part, that the court
should have ordered the Children to attend the camp for eight weeks each
summer and to attend the preschool full time. Father’s Brief (1703 EDA 2021)
at 81-87. Given the court’s observations regarding the parties’ high-conflict
relationship, and its award of sole legal and primary physical custody to
Mother, we discern no abuse of discretion by the court in deciding to limit the
amount of time the Children would need to spend at the preschool and camp
program Father’s family operates.
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that he will provide “some highlights of Mother’s contemptuous behavior” and
then goes on for roughly fifty pages listing, often with repetition, seemingly
everything he can think of that Mother has done to upset him since the parties
separated. Father’s Brief (1703 EDA 2021) at 29-81. Father’s contempt claim
is incomprehensible, and this Court will not act as his counsel by scouring the
record, comparing his myriad contempt allegations against the five days of
testimony in this case, and developing a clear argument for him. See Krauss,
104 A.3d at 584; Schenk v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005)
(quoting Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 2005) (“‘[I]t
is not the duty of the Superior Court to scour the record and act as appellant’s
counsel, and we decline to do so.’”).
Father argues in his fifth claim that the trial erred by failing to “equitably
distribute” the parties’ “financial obligations and holiday time” in its July 16,
2021 order. Father’s Brief (1703 EDA 2021) at 11. Father complains Mother
does not earn a significant income but works for free at a daycare in exchange
for the Children’s attendance as well as part-time for a caterer. Id. at 87-91.
Because of this, Father argues, he is burdened with child and spousal support
obligations, provides the Children’s health insurance, and pays other expenses
as well. Id. at 89-91. Father also requests changes to the order’s holiday
schedule, asserting primarily that he should receive additional holiday time
with the Children, and that Mother’s holiday time should be reduced. Id. at
91-94.
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It is important to emphasize the only matter presently before this panel
is the parties’ child custody dispute. To the extent Father complains about his
child or spousal support obligations, the order on appeal does not govern those
matters, and we may not consider them. Further, to the extent he complains
about his financial burdens in this custody case, the only burden the July 16,
2021 order appears to impose on Father is that he provide the Children with
health insurance. See Order, 7/16/21, at 8. Father did not oppose providing
insurance for the Children at the custody hearing and complained that Mother
was using her own health insurance for the Children rather than his. See N.T.
2/19/21, at 136 (Father testifying, “her not using my private health insurance
is another way of restricted parenting and not giving access so I don’t get the
summaries of the appointments.”). Therefore, the health insurance provision
in the July 16, 2021 order essentially grants relief that Father requested during
these proceedings.14
As for Father’s complaints regarding the holiday schedule, our review of
the trial court’s order reveals the court crafted a reasonably balanced division
of holiday time. The parties alternate all secular holidays. Regarding religious
____________________________________________
14 We also note that Father’s complaint regarding Mother’s failure to earn a
significant income is perplexing, given Father does not appear to earn any
income at all. Father testified he suffered injuries in 2019, which impair his
ability to work as a software developer. N.T., 3/16/21, at 54, 68. According
to Father, these include injuries to his elbow, wrist, and back, which prevent
him from sitting and typing for long periods. Id. at 65-68. Father conceded,
despite this, that he had not earned “any money from working” since 2014,
long before the injuries occurred. Id. at 21.
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holidays, Father is Jewish, while Mother is Catholic. Thus, the court awarded
Jewish holidays to Father and Catholic holidays to Mother. The court awarded
more time to Mother during each Catholic holiday than it did to Father during
each Jewish holiday and provided Catholic holidays would take precedence if
a Catholic holiday and Jewish holiday coincide.15 The apparent reason for this
disparity is that there are more Jewish holidays on the schedule than Catholic
holidays. Specifically, the court awarded Father Passover, Rosh Hashanah,
Yom Kippur, and Hanukkah, while awarding Mother Easter and Christmas. If
no holidays coincide, this results in Father having one hundred and forty-four
hours of religious holiday time during a given year, and Mother’s having one
hundred and fifty-one hours of religious holiday time. As the holiday schedule
is generally equitable, we discern abuse of discretion.
Next, Father’s interrelated sixth and seventh claims are that the trial
court erred by denying his “Motion to Extend Time for Contempts,” and limiting
his presentation of evidence during the hearing.16 The substance of Father’s
claims is that the five-day custody hearing the court conducted in this matter
____________________________________________
15More precisely, if Christmas and Hanukkah coincide, Christmas would take
precedence, but Father would receive an extra day of custody during the
noncoinciding portion of Hanukkah. If Easter and Passover coincide, Easter
would take precedence, except that Passover would take precedence over
Mother’s custody on Easter Monday.
16Father filed his “Motion to Extend Time for Contempts” during the hearing
on February 19, 2021, and the trial court denied the motion on the record.
N.T., 2/19/21, at 137.
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was inadequate for him to present his case. Father’s Brief (1703 EDA 2021)
at 94-96. Father waived these claims by failing to develop them in his brief
with citations to relevant legal authority. See M.Z.T.M.W., 163 A.3d at 465.
Even if Father had not waived these claims, we would conclude they are
meritless. It is within the sound discretion of the trial court to admit or exclude
evidence. In re A.J.R.-H., 188 A.3d 1157, 1166-67 (Pa. 2018). Our Rules
of Evidence direct, moreover, that courts “should exercise reasonable control
over the mode and order of examining witnesses and presenting evidence so
as to[,]” in relevant part, “(1) make those procedures effective for determining
the truth; [and] (2) avoid wasting time[.]” Pa.R.E. 611(a)(1)-(2).
Here, we see no basis to conclude the five-day hearing in this matter
was inadequate for the trial court to hear the relevant evidence and reach an
appropriate decision. What Father fails to acknowledge in his brief is that the
hearing was originally scheduled to last only two days. See Amended Order
– Triage Resolution, 12/23/20 (scheduling the parties’ dispute for “a two []
day protracted hearing”). At the hearing, the court cautioned Father it would
not grant excessive continuances. See N.T., 1/26/21, at 115 (“But I’m just
telling you now, I’m not scheduling this hearing out three or four more days.”).
The court later relented and extended the matter for an additional three
days to accommodate Father. Of the five-day hearing that resulted, Father
spent about four days presenting evidence, while Mother spent about one.
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Although Father may have preferred to have an even longer hearing, it was
well within the court’s discretion to limit the case to five days.
In Father’s eighth issue, he argues that the trial court erred by declining
to recuse itself. Father does not develop this argument in his brief but merely
directs our attention to argument he presented in his petition for recusal.17
Father’s Brief (1703 EDA 2021) at 96-97. Thus, Father has waived this claim.
See M.Z.T.M.W., 163 A.3d at 465; Commonwealth v. Briggs, 12 A.3d 291,
343 (Pa. 2011) (“[O]ur appellate rules do not allow incorporation by reference
of arguments contained in briefs filed with other tribunals, or briefs attached
as appendices, as a substitute for the proper presentation of arguments in the
body of the appellate brief.”) (footnote omitted).
Had Father not waived this claim, it would be meritless. We review the
trial court’s decision not to recuse for an abuse of discretion. In the Interest
of D.R., 216 A.3d 286, 292 (Pa. Super. 2019), affirmed, 232 A.3d 547 (Pa.
2020) (quoting In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014)). Our review
of the court’s decision is “exceptionally deferential.” Id. We recognize that
the court itself is the best judge of its own impartiality, and that a court should
recuse “only if a doubt exists as to [its] ability to preside impartially or if
impartiality can be reasonably questioned.” Id.____________________________________________
17 Father also filed this petition during the hearing on February 19, 2019. The
trial court denied it on the record. N.T., 2/19/21, at 137-40.
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We have thoroughly reviewed the record in this case and have no reason
to believe that the trial court harbored any partiality against Father. Father’s
argument in his petition for recusal consisted generally of complaints that the
court made rulings or was conducting the matter in a way he did not like. This
Court has stated, contrary to Father’s position, that “simply because a judge
rules against a [party] does not establish bias on the part of the judge against
that [party].” Lewis v. Lewis, 234 A.3d 706, 722 (Pa. Super. 2020) (quoting
Commonwealth v. McCauley, 199 A.3d 947, 951 (Pa. Super. 2018)). Our
review confirms the court treated Father respectfully, granted him latitude
throughout the hearing, and demonstrated exemplary patience. As discussed
above, the court even held a hearing that was more than twice its originally
scheduled length to accommodate Father’s presentation of his case. This
resulted in Father’s taking roughly four days to present evidence and Mother’s
taking roughly one. Father’s suggestion that the court conducted the matter
in a way that was biased against him is baseless.
Finally, Father maintains in his interrelated ninth and tenth issues that
the trial court erred by denying his motions in limine to exclude any evidence
regarding his suspended driver’s license and failure to pay spousal or child
support. See Father’s Brief (1703 EDA 2021) at 97-100. Father waived these
claims by failing to develop them in his brief with citations to relevant legal
authority and relying in part on arguments he made in his motions in limine.
See M.Z.T.M.W., 163 A.3d at 465; Briggs, 12 A.3d at 343.
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We would conclude once again, however, that Father’s claims lack merit
even if he had not waived them. “When reviewing a trial court’s determination
on motions in limine, we apply an abuse of discretion standard.” Davis v.
Borough of Montrose, 194 A.3d 597, 606 (Pa. Super 2018) (citing Turner
v. Valley Hous. Dev. Corp., 972 A.2d 531, 535 (Pa. Super. 2009),
reargument denied (June 23, 2009)).
Father argued in his motions in limine that his suspended driver’s license
and failure to pay support had no relevance to the custody proceedings. See
Pa.R.E. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.”). Alternatively, he argued unfair
prejudice, confusion of the issues, and the potentially misleading nature of the
evidence warranted its exclusion. See Pa.R.E. 403 (“The court may exclude
relevant evidence if its probative value is outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, [or] misleading
the jury[.]”). Father further proposes in his brief that his legal counsel in
other matters instructed him not to disclose his failure to pay support, and
that forcing him to do so violated his right to due process and attorney-client
privilege. Father’s Brief (1703 EDA 2021) at 98.
Father’s argument is disingenuous. Father filed his motions in limine on
March 12, 2021. Strikingly, though, Father himself first introduced evidence
of his suspended license, and the fact that it resulted from a support issue,
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one-and-a-half months earlier on the first day of the hearing, January 25,
2021. Father raised his suspended license in his opening statement and then
presented extensive testimony addressing the issue. See N.T., 1/25/21, at
85, 89-158, 166-77. Father’s motions in limine advanced the argument, in
effect, that he should be allowed to present evidence as to his suspended
license and failure to pay support, but Mother should not.
It is important to add that the admission of evidence regarding Father’s
suspended driver’s license worked in his favor. In its findings of fact, the trial
court observed that Mother had acted vindictively by notifying the police at a
custody exchange that Father’s license was suspended when she knew this
resulted from failure to pay support and not from a safety issue. See Findings
of Fact, 7/16/21, at 4-5. The court used this incident as an example of how
Father was “not alone” in his failure to coparent, and why Mother was also to
blame. Id.Based on the foregoing analysis, we conclude Father’s appeal at 1703
EDA 2021 is also meritless, and we affirm the July 16, 2021 order.
CONCLUSION
After review of the lengthy record in this matter, we conclude the trial
court did not commit an error of law or abuse of discretion. We, therefore,
affirm the June 16, 2021, and July 16, 2021 orders. We also deny Father’s
“Motion for Reconsideration” of our order consolidating these appeals.
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Orders affirmed. Motions for reconsideration denied.18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2022
____________________________________________
18We previously disposed of Appellant’s Applications for Relief and Amended
Application for Relief filed on December 9, 2021, and December 13, 2021.
See Order, 3/21/22.
On March 29, 2022, Appellant filed an Application for Emergency Relief, which
we addressed in our April 4, 2022 Order. In our 4/4/22 Order, we directed
Appellant to provide four flash drives containing copies of Appellant’s exhibits.
Appellant timely complied.
Based on our review of the record, it appears the “missing” exhibits are in fact
part of the official record forwarded to us by the trial court. See 2019-06877-
0253 Petition and accompanying exhibits, and 2019-06877-0266 Emergency
Family Petition and accompanying exhibits. Additionally, Appellant attached
the same missing exhibits to his reply brief. Thus, the record is complete. To
the extent some of the exhibits are missing, as Appellant claims, the
incompleteness of the record is attributable to Appellant’s inability to comply
with the trial court’s clear instructions regarding introduction of evidence, and
the confusion resulting from overwhelming the trial court with a plethora of
filings, all affected by excessive verbosity, and unnecessary redundancy.
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