Parnell, R. v. Parnell, L. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD SEAN PARNELL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LAURIE A. PARNELL : No. 1494 WDA 2021
Appeal from the Order Dated November 22, 2021
In the Court of Common Pleas of Butler County Civil Division at No(s):
F.C. No. 17-90403-C
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED: September 8, 2022
Richard Sean Parnell (“Father”) appeals from the order that awarded to
Laurie A. Parnell (“Mother”) primary physical custody and sole legal custody
of the parties’ three children. We affirm.
Mother and Father married in 2010. Their children were born in 2009,
2011, and 2013. Mother was employed as a loan officer with a flexible
schedule, primarily working from home in the marital residence in Cranberry
Township, Butler County. Father worked for a mortgage company, for a
corporate training company, as a fiction and non-fiction author, and he also
undertook successive campaigns for the U.S. House and Senate. Prior to the
COVID-19 pandemic, Father traveled extensively for work.
The parties’ relationship was tumultuous. Father maintained that their
fighting was verbal, while Mother alleged that Father also became physically
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violent at times. Mother twice filed petitions pursuant to the Protection From
Abuse Act (“PFA”). The first PFA petition, commenced in 2017, was withdrawn
by Mother. The second PFA petition was based upon an alleged incident in
2018 that prompted the parties’ separation, during which Father purportedly
harmed one of the children. This petition was denied after a full hearing
without the findings of fact or a legal explanation. The PFA case was
subsequently expunged on Father’s motion, which Mother did not oppose.
After separation, Mother remained in the marital residence. Father
initially remained in Butler County, but later took up residence twenty-five
minutes away in Ohio Township, Allegheny County. The parties each resided
approximately fifteen minutes away from the children’s K-8 private school,
and initially exercised shared legal physical custody pursuant to a July 2018
interim order providing for a 5-2-2-5 schedule. The parties agreed to largely
maintain this arrangement in a consent order entered in April 2019, however,
Mother was granted additional time with the children on the afternoons of
school days during Father’s custodial periods to assist them with their
homework.
The parties’ separation did not terminate the conflict or animosity
between them. Rather, both parents engaged in communication that was at
best poor, at worst arguably abusive, and was commonly overtly hostile.
Topics of conflict and disagreement spanned the gamut of coparenting,
including the availability of the noncustodial parent to access the children by
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phone, whether the children’s homework assignments were being completed,
their need for therapy and to which mental health counselor the children
should go, which school the children should attend, and whether each parent
informed the other about doctor appointments and sports schedules.
In August 2020, Mother filed for modification of custody. Pretrial
conferences were twice rescheduled after the assigned trial judges recused
from the case. The present trial judge was assigned in July 2021. Additional
filings followed, including amended petitions from Mother requesting primary
physical custody and sole legal custody based upon Father’s alleged refusal to
address the children’s mental health concerns and educational needs. Father
ultimately in an amended answer and counterclaim sought primary custody
himself.
The matter was tried over three days in November 2021. Mother offered
the testimony of two of her siblings, who related observations of Father
exhibiting intense anger or impatience with one of the children. Mother
testified about Father’s physical and verbal abuse of her throughout the
relationship and, over Father’s objections, related the details of the incidents
that formed the bases of the PFA filings. Mother also produced photographs
that she indicated depicted injuries that Father had caused to two of the
children. Mother further provided extensive testimony and printouts of written
communications with Father documenting the high level of conflict between
the parties, including Father’s refusal to allow the children to continue seeing
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a particular licensed mental health counselor. Mother explained the negative
impact the absence of counseling had on the children, with one child
experiencing a significant crisis in 2021 before she filed her request for sole
legal custody. Mother further explained her intention to remain in the
children’s current school district, her abundant availability to be at home to
supervise the children, and her availability to ensure their participation in
extracurricular activities.
Father testified as to his present living situation with his paramour and
her two daughters, aged fourteen and ten, with whom the children have
positive relationships, and the presence nearby of his extended family. Father
opined that his travel for work and campaigning would not interfere with his
ability to exercise physical custody, as he would schedule trips for times when
the children were with Mother. Father asserted a willingness to have the
children continue to go to their current schools, and to resume counseling,
indicating that Mother had never informed him of the incident in 2021.
Father denied having abused any of the children. He maintained that
one of the alleged injuries never happened, and indeed contended that the
child shown in the photograph Mother offered was not his child. Father also
explained that Mother was not present for the second incident, which he
maintained was an accident that occurred during play. Father presented the
testimony of his live-in paramour, and of an employee who worked for the
couple during the marriage and who continues to provide some childcare at
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Father’s home, concerning the loving and appropriate relationship he and the
children share. Father also offered the testimony of the court-appointed
clinical psychologist who opined that the children should resume therapy with
the involvement of both parents.
Additionally, the parties gave testimony concerning sensitive mental
health topics, which was taken outside the presence of the media and other
spectators and was sealed. The trial court also heard sealed testimony from
each of the children with only the court reporter and attorneys present.
On November 22, 2021, the trial court filed an opinion detailing his
credibility determinations and factual findings, and an order of court
establishing a new custody arrangement. Specifically, the trial court ordered
that Mother shall have primary physical custody of the children subject to
Father’s partial custody on the first, third, and fourth weekend of each month.
The order also provided that Mother shall have sole legal custody of the
children, meaning “the sole right to make major decisions on behalf of the
children, including, but not limited to, medical, religious[,] and educational
decisions.”1 Order, 11/22/21, at ¶ 1. Further, the order indicated that all
terms and conditions of the prior custody order not inconsistent with the new
order remained in effect.
____________________________________________
1 Father, however, retained full access to all third-party records, as well as
notice of all scheduled appointments to allow Father to attend if he so wished.
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This timely appeal followed. Both Father and the trial court complied
with Pa.R.A.P. 1925. Father states the following questions for our review,
which we have re-numbered for ease of disposition:
1. Whether the trial court abused its discretion and erred as a
matter of law in awarding Mother primary physical custody
of the parties’ three minor children.
2. Whether the trial court abused its discretion and committed
errors of law in its application of the custody factors at 23
Pa.C.S. § 5328.
3. Whether the trial court abused its discretion and erred as a
matter of law by making findings related to the alleged
complications of a 5-2-2-5 shared custody schedule despite
no evidence of such complications being admitted in this
matter.
4. Whether the trial court abused its discretion and erred as a
matter of law when it found that Factor 4 weighs heavily in
favor of Mother based upon Father’s move to a different
school district while, in a contradictory finding at Factor 11,
the court found that the distance between the parties’
residences is not an impediment to an appropriate custody
arrangement.
5. Whether the trial court abused its discretion and erred as a
matter of law when it speculated as to Father’s travel
schedule and future unavailability, which was based on the
court’s own presuppositions and not based on the evidence
or testimony presented.
6. Whether the trial court abused its discretion and erred as a
matter of law in its analysis of Factor 13 when it referenced
Mother as the parent “who will have primary residential
custody of the children,” demonstrating that the court had
predetermined that Mother would be awarded primary
physical custody and conducted its analysis based upon that
presumption and not based upon the evidence and
testimony admitted as to the parties’ current custody
arrangement.
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7. Whether the trial court abused its discretion and erred as a
matter of law in its analysis of Factor 15 when it weighed
the factor against Father based on an improper finding that
Father did not agree to counseling and after the court found
that Mother failed without good reason to communicate
about one of the children’s threats of suicide and sometimes
failing to effectively communicate about the children’s
health, thereby precluding Father from having all necessary
information available to make an informed decision
regarding the children’s counseling needs.
8. Whether the trial court erred as a matter of law by finding
that Father lacked credibility based upon his denial of factual
allegations raised by Mother without detail, his attire, and
the in direction [sic] which Father looked in the courtroom
while testifying.
9. Whether the trial court abused its discretion and erred as a
matter of law when, contrary to the doctrine of collateral
estoppel, it admitted testimony and evidence regarding
abuse allegations which the court had already found to not
rise to the level of abuse in a PFA proceeding.
10. Whether the trial court abused its discretion and erred as a
matter law when it made a finding that Father “did commit
some acts of abuse in the past,” contrary to the doctrine of
collateral estoppel and when the court did not make any
specific findings as to what did or did not occur.
11. Whether the trial court abused its discretion and erred as a
matter of law by denying Father the opportunity to admit
evidence that was relevant to the court’s analysis of the
parties’ credibility and motivations.
12. Whether the trial court abused its discretion and erred as a
matter of law when it awarded Mother sole legal custody of
the parties’ three minor children.
Appellant’s brief at 5-8 (cleaned up).
The following legal principles govern our review:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
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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.
S.T. v. R.W., 192 A.3d 1155, 1160 (Pa.Super. 2018) (internal quotation
marks omitted).
Pursuant to 23 Pa.C.S. § 5328, “[u]pon petition, a court may modify a
custody order to serve the best interest of the child.” 23 Pa.C.S. § 5328(a).
In entering any custody order, the trial court is to determine the best interests
of the child through consideration of the following factors:
(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.
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(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s
maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make
appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A party’s
effort to protect a child from abuse by another party is not
evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of
a party’s household.
(15) The mental and physical condition of a party or member of a
party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
“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). While a trial court must consider
each of the statutory factors, “the amount of weight that a court places on
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any one factor is almost entirely discretionary.” O.G. v. A.B., 234 A.3d 766,
777 (Pa. Super. 2020). See also D.Q. v. K.K., 241 A.3d 1112, 1117
(Pa.Super. 2020) (“The 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.” (cleaned up)). As we have explained:
it is not this Court’s function to determine whether the trial court
reached the right decision; rather, we must consider whether,
based on the evidence presented, given due deference to the trial
court’s weight and credibility determinations, the trial court erred
or abused its discretion in awarding custody to the prevailing
party.
E.B. v. D.B., 209 A.3d 451, 468 (Pa.Super. 2019) (cleaned up) (quoting King
v. King, 889 A.2d 630, 632 (Pa.Super. 2005)). See also D.Q. v. K.K., supra
at 1117 (“[T]he 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.”).
Father’s first cluster of arguments concerns the propriety of the trial
court’s decision to place Mother in primary physical custody of the children.
He commences by broadly averring that the trial court’s determination as to
physical custody was the product of an abuse of discretion and an error of law.
See Father’s brief at 25-28. He then raises a general challenge to the trial
court’s application of the statutory factors applicable to custody
determinations. Id. at 29-31. In his following five issues, Father then states
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specific challenges to the trial court’s reasoning and assessment of Father’s
credibility. Id. at 35-54. We consider these claims of error together.
In announcing its ruling, the trial court observed at the outset that, while
the children love and feel safe with both parents, and both parents are loving
and capable, the existing shared custody arrangement was not serving the
best interests of the children. See Trial Court Opinion, 11/22/21, at 1. Since
equal custody was no longer a viable option, one parent necessarily would
have to be awarded more time than the other. Id. Upon this foundation, the
court analyzed the statutory factors to enable it to determine which parent
would better serve the children in that role. Id.
Upon undertaking this examination, the trial court found that factors
ten (attending daily needs), thirteen (level of conflict between the parties),
fifteen (mental and physical condition), and sixteen (other relevant factors, in
this case, credibility and reliability in giving truthful reports) favored Mother,
and four (stability and continuity), and twelve (ability to care for child)
weighed heavily for Mother. The court concluded that factors one
(encouraging contact) and five (availability of extended family) supported
Father. Id. at 3-15 (applying evidence to factors); Confidential Supplemental
Opinion, 11/22/21, at 1-4 (discussing the mental health aspects of factor
fifteen). The trial court decided that the rest of the factors were either
inapplicable or did not favor either party over the other. See Trial Court
Opinion, 11/22/21, at 4-14. Of relevance to this appeal, in its analysis of
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factor two (risk of harm to the child), the trial court opined that the parties
were “equally capable of providing adequate physical safeguards” for the
children, although it found that Father did commit the acts described by
Mother that caused harm to two of the children. Id. at 9. The court reasoned
that those facts did not carry weight in its analysis because Father has
committed no abusive acts in the past three and one-half years, has properly
cared for the children while they were in his custody, and the children did not
express any concerns for their safety. Id. at 8-9.
Upon consideration of all the evidence, the trial court determined that
the factors warranting the most weight were factors four (stability and
continuity), twelve (ability to care for child), and thirteen (level of conflict
between the parties). For example, in addressing factor four, the trial court
stated as follows:
The need for stability and continuity in the children’s life is
one of the most important factors in this case. The current “5 2
2 5” custody schedule, which both parents agreed to follow and
which is described in the order of court regarding custody dated
April 8, 2019, has resulted in instability and a lack of continuity
for the children. The current schedule provides for short periods
of custody time with each parent, the children being with their
mother on most school days from 3:00 to 5:00 p.m., frequent
custody exchanges during the school week, and the children
spending a lot of time riding in cars.
This schedule suits the interests of parents who agree to
50/50 custody, but it is unnecessarily complicated and confusing
for the children. Many times, despite everyone’s best efforts, the
children forget homework and clothes that they will need for the
next day. The current schedule is time consuming for the parents
to execute and leads to disagreements and disputes, particularly
with regard to school work and activities.
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Both [Mother] and [Father] believe that it is in the best
interests of the children to receive a quality education, to actively
participate in extracurricular activities and sports, and to have
good social relationships with peers. [Mother] has been
supervising the children and assuring they complete and turn in
their homework on time. Sometimes homework is not completed
when the children return from their father’s. That requires the
children to get caught up within a short time and causes them
unnecessary stress.
The children now attend Catholic school, but they will soon
move into middle school in a public school district. [Mother] lives
and will continue to live in the Seneca Valley School District. The
oldest child has friends who will attend Seneca Valley Middle
School and he is prepared and willing to attend that school as well.
[Father] has moved to Sewickley, which is in a different school
district. The children’s friends at their current school will not go
to that school. For these reasons, this factor weighs heavily in
favor of [Mother].
Id. at 10-11 (cleaned up).
The trial court explained as follows concerning factor twelve:
Availability is a major factor in this case. [Mother] has a
flexible work schedule, primarily works from home, and will
maintain her residence in the area. She is available to transport
the children to school and their activities.
On the other hand, [Father] is required to travel out of the
area at times for his current jobs and it appears with restrictions
because of COVID being lifted, he will be traveling more
frequently. Significantly, [Father] is a leading candidate for
United States Senate and will be traveling frequently as he
campaigns throughout the [s]tate in preparation for the primary
election next spring. He expects to win the primary election and
will travel frequently as he campaigns for the fall general election.
He expects to win the election and to reside parts of the year in
Washington, D.C. These circumstances certainly restrict his ability
to have primarily physical custody of the children.
Further, [Father’s paramour] and her two daughters have
within the past week begun residing full time with him. His family
unit now includes the three of them. He devotes time to them, in
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addition [to] time with . . . his own children. [Mother] resides
alone with her children. Both parents can make appropriate
childcare arrangements when they do not have custody.
This factor weighs heavily in favor of [Mother].
Id. at 13. As for factor thirteen, the trial court offered the following:
Unfortunately, there is a very high level of conflict between
the parties. Both parties are equally at fault for refusing to
communicate effectively and to reach compromise decisions
regarding the needs of the children. Therefore, it is necessary for
one of the parents to be primarily responsible for those decisions,
until they demonstrate they are willing to communicate.
This factor weighs in favor of [Mother], as the parent who
will have primary residential custody of the children and who has
been and will be primarily responsible for meeting the children’s
educational needs.
Id. at 14.
Overall, the trial court found that both parents love their children and
provide proper care. Id. at 1. However, as a result of this assessment of the
relative merits of the parties’ positions as to each factor, and of which factors
were entitled to the greatest weight, the court concluded that the children’s
best interests were served by awarding primary physical and sole legal
custody to Mother.
Initially, we observe that, in challenging the trial court’s application of
the factors to conclude that Mother should assume primary physical custody
of the children, Father asserts throughout his arguments that his testimony
was credible and, consequently, determinative of the issues in his favor. See,
e.g., Father’s brief at 37, 41, 47, 52-53. Meanwhile, he largely fails to
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acknowledge contrary evidence that supported the trial court’s findings in
favor of Mother. Father in effect asks this Court to view the evidence admitted
at the modification hearing in the light most favorable to his position, to credit
his testimony over Mother’s, and to conclude that the trial court’s failure to
impose the week on, week off schedule that Father suggested was the only
reasonable conclusion.2 In this respect, Father “essentially ask[s] this Court
to re-find facts, re-weigh evidence, and re-assess credibility. That is not our
role.” D.R.L. v. K.L.C., 216 A.3d 276, 286 (Pa.Super. 2019). It is well-settled
that “on issues of credibility . . . we defer to the findings of the trial court
which has had the opportunity to observe the proceedings and demeanor of
the witnesses.” K.D. v. E.D., supra at 1230 (cleaned up). Accordingly, we
shall proceed to address Father’s challenges to the trial court’s analysis of
specific factors only insofar as he complains that the trial court erred as a
matter of law and made findings not supported by the record.
____________________________________________
2 While Father’s pretrial proposed custody order suggested shared custody in
alternating weeks, he instead advocated at the conclusion of the hearing for
primary physical custody, claiming that Mother’s hearing testimony caused
him to believe that she is incapable of exercising sound judgment to keep the
children safe. See N.T. Trial, 11/1-9/21 (Sealed Volume IV), at 265-69.
Mother contends that Father is consequently estopped to argue that the trial
court should have ordered shared physical custody, arguing: “Father cannot
now take the position that the facts and the law support nothing other than a
shared custody schedule.” See Mother’s brief at 19. Id. While we do not
deem estoppel or waiver applicable, we observe that both parties’ choice to
advocate for abandoning the existing custody schedule supported the trial
court’s conclusion that the status quo not only was failing to serve the
children’s best interests but was no longer desired by either parent. See Trial
Court Opinion, 11/22/21, at 1.
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Father first argues that the trial court’s finding that the 5-2-2-5 schedule
was not working is not supported by the evidence. He maintains that “the
only evidence presented regarding the challenges of the shared schedule were
directly related to the afterschool 3:00 p.m. to 5:00 p.m. period.” Father’s
brief at 36. Father credits his own testimony about how that aspect of the
existing arrangement was the sole cause of any problems, as well as that of
the children concerning items left behind during those transitions. Id. at 37-
39. He further emphasizes that the children indicated that they preferred to
maintain equal time with each parent. Id. at 38-39.
Father’s claim is meritless. Father’s own reiteration of the testimony
concerning the confusion and stress of the frequent exchanges amply
supported the trial court’s conclusion that the existing schedule was not
serving the children’s best interests. Further, Father neglects to acknowledge
that the 2019 custody schedule was created to give the at-issue afterschool
time with Mother because, when the parties previously operated under the
straight 5-2-2-5 schedule, the children did not complete their assignments
during Father’s custodial periods. We discern no abuse of discretion in the
trial court’s conclusion that neither the original shared custody schedule nor
the modified 2019 arrangement was working for the children and that fewer
transitions were warranted, such that placing the children with Mother on all
school nights was in the children’s best interests.
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Father next argues that the trial court’s finding that the children’s need
for stability is best served by residing primarily with Mother in their current
school district is in irreconcilable conflict with its determination “that the
distance between the parties’ residences is not an impediment to an
appropriate custody arrangement.” Father’s brief at 40.
Father’s argument is unavailing. As Mother observes, “Father mixes
apples and oranges in [this claim of] error, attempting to argue that proximity
is equal to stability and continuity.” Mother’s brief at 30. We reiterate that
both parties advocated against maintaining shared custody, and the record
supports the trial court’s conclusion that the status quo was not serving
children’s best interests. It unavoidably follows that a change from the
unsatisfactory fifty-fifty arrangement would place the children primarily with
one parent or the other. As such, the distance between the residences is a
wholly distinct question from whether the children’s needs for continuity and
stability would be better served by remaining in the district in which they have
lived throughout their lives, or uprooting them from their existing school
district and the ability to attend middle and high school with their private
school friends who would also transition to public school. Father’s argument
that the children could still attend middle school and high school in the Seneca
Valley School district if they resided with him as often as with Mother is
premised on the rejected foundation that a shared custody schedule is
appropriate. Thus, no relief is due.
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Next, Father asserts that the trial court “abused its discretion and erred
as a matter of law when it speculated as to Father’s travel schedule and future
unavailability, which was based on the court’s own presuppositions and not
based on the evidence or testimony presented.” Father’s brief at 44. In so
doing, Father relies primarily upon portions of his own testimony, which he
describes as credible despite the trial court’s express finding to the contrary.
That evidence, Father argues, established that he was able to arrange his
travel to be available for the children during his custodial periods, and that no
major changes to that availability would occur at least until January 2023
when the new U.S. Senator took office. Id. at 48.
Our review of the record reveals Father’s contentions to be baseless.
Father testified that his job with Fairway Mortgage required him to be on call
twenty-four hours a day, seven days a week. See N.T. Trial, 11/9/2021, at
465. While his work travel lessened considerably during the earlier phase of
the COVID-19 pandemic, he acknowledged that travel for Fairway was
resuming. Father further testified that his campaign for Senate, and service
in Congress, would involve “a great deal of travel.” Id. at 473. If Father
prevailed in the primary and the general election, which Father testified that
he believed would happen, he would have to be in Washington, D.C. for more
than one hundred weekdays per year. Id. at 475. Further, as Mother
observes, Father’s suggestion “that the family would not need to worry about
his Senate schedule until January 2023 demonstrates [his] lack of foresight
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and consideration for the stability of the children,” in “suggest[ing] that the
custody schedule could be subject to change yet again in a year.” Mother’s
brief at 34 (emphasis in original). Accordingly, the trial court’s findings as to
travel are founded upon record evidence and reasonable inferences therefrom,
not upon conjecture.
Father next posits that the trial court’s reference in its analysis of factor
thirteen to Mother being the parent “who will have primary residential custody
of the children” revealed “that the court had predetermined that Mother would
be awarded primary physical custody and conducted its analysis based upon
that presumption and not based upon the evidence and testimony admitted
as to the parties’ current custody arrangement.” Father’s brief at 49. Father
maintains that affirming a decision reached by a trial court before it considered
all of the statutory factors “would be dangerous.” Id. at 51.
We find no indication that the trial court’s opinion evinced an improper
predetermination of the result. Rather, as Mother observes, the trial court’s
analysis as a whole indicates that it found that the parties were equally to
blame for a level of conflict that precluded them from sharing decision-making
authority. Accordingly, the trial court concluded that one parent or the other
must be given sole legal custody. Since the weighing of the factors as a whole
led the court to believe that allowing Mother to exercise primary physical
custody was in the children’s’ best interests, giving Mother primary legal
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authority to make the decisions concerning the children’s education and health
was most appropriate. See Mother’s brief at 24, 36.
We agree with Mother that the trial court’s analysis of factor thirteen did
not appear to impact its physical custody decision one way or the other.
Rather, the trial court cited its ultimate decision to make Mother the primary
physical custodian, which was based upon consideration of all the factors, as
its basis for resolving the question of legal custody in Mother’s favor. Hence,
Father’s argument as to factor thirteen does not justify disturbing the trial
court’s ruling as to physical custody.
Finally, Father avers that the trial court committed reversible error in
weighing factor fifteen against Father. In particular, Father asserts that the
court improperly found that Father did not agree to counseling when he
“testified on a number of occasions that, historically, he not only supported
the children’s mental health treatment, but suggested it.” Father’s brief at
52. Father also argues that, given the trial court’s finding that Mother
generally failed to communicate with Father about the children’s health and
specifically did not inform Father of an acute mental health crisis that one of
the children experienced, it is unfair to fault Father for failing to act when he
lacked “all necessary information available to make an informed decision
regarding the children’s counseling needs.” Id.
No relief is due. The trial court credited Mother’s testimony that the
anxiety of one of the children was being addressed through counseling before
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and after the separation, and that both parties agreed for all children to
receive counseling following the separation, but Father in 2019 determined
that the counseling at that location should cease. See Confidential
Supplemental Opinion, 11/22/21, at 1. Father conceded that he informed
Mother that any further counseling had to be at Mother’s expense and during
her custodial periods. See N.T. Trial, 11/1-9/21 (Sealed Volume IV), at 273-
74. Although Father had acknowledged that the child in question had ongoing
concerns and had indeed been in crisis in 2019, see id. at 282, and Mother
informed Father that the child was exhibiting behaviors raising increasing
mental health concerns, see id. at 274-77, Father would not agree to
counseling. He dismissed Mother’s concerns, insisting that the child instead
was “a good kid,” and he chastised Mother for what he interpreted as “calling
[the child] broken” and questioning the child’s sanity. Id. at 277-79. It was
after Father’s repeated refusals over a two-year period to agree to the child
continuing with the established counselor that the incident in question
occurred in early 2021.
Father’s complaint that he did not have the necessary information to
make an informed decision about the children’s need for counseling is
unavailing. Mother conveyed information to Father about the child’s condition
before the 2021 incident, and Father did not act, believing, despite Mother’s
concerns, that the children “weren’t doing so bad that they needed therapy.”
Id. at 274. Indeed, Father worried at the hearing that a record of the mental
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health issues could damage the child’s future dating prospects or ability to join
the military. Id. at 237-38. The fact that Father would have agreed to
counseling after the incident in no way explains away his refusal to address
the ongoing problem for the two years before the incident. Accordingly, we
conclude that the trial court’s determination that Father’s reluctance to ensure
that the children receive counseling rendered Mother better suited to attend
to the mental condition of the children is both supported by the certified record
and a reasonable exercise of the trial court’s discretion.
Father’s remaining factor-based issues concerning physical custody
pertain to the trial court’s analysis of factor two (present and past abuse).
Father claims that the trial court erred in allowing Mother to offer testimony
and other evidence about abuse that Father purportedly perpetrated prior to
the parties’ separation, and in “finding that Father did commit some acts of
abuse in the past,” because the doctrine of collateral estoppel precluded the
trial court from revisiting the PFA court ruling that the allegations did “not rise
to the level of abuse.” Father’s brief at 32. Father also contends that the trial
court erred in precluding him from offering evidence that called Mother’s
credibility into question. Id. at 56.
As mentioned above, the trial court considered and credited Mother’s
allegations that Father had been physically and verbally abusive during the
marriage, and on two instances had caused harm to a child in the home. The
court found Father to be less credible because he simply denied that most of
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the incidents happened, which was unbelievable in light of the other evidence;
he was evasive; he did not look at the court when testifying, but instead at
the members of the news media or his attorneys; and he appeared unduly
casual, suggesting a lack of “respect for the seriousness of the occasion.” Trial
Court Opinion, 11/22/21, at 8. Nonetheless, the trial court determined that
factor two was neutral in the analysis. In particular, the court concluded that,
since the instances were remote in time and no further incidents occurred
since the separation, Father was presently just as capable as Mother, against
whom there was no evidence of abuse, of providing a safe environment for
the children. Id. at 8-9.
Father finds it “curious” that the trial court did not weigh this factor
against Father in light of the past abuse, and “confounding” that it found the
factor neutral. Father’s brief at 54. He suggests that there was no need to
discuss the allegations in depth since the trial court concluded that they “were
not relevant.” Id. Father further complains that “the trial court erred as a
matter of law by finding that Father lacked credibility based upon his denial of
factual allegations raised by Mother without detail, his attire, and the direction
in which Father looked in the courtroom while testifying.” Id. at 54.
Specifically, Father states that a simple denial is all he could offer because it
is impossible to prove a negative, rendering the trial court guilty of “a logical
fallacy” and bemoans that this calls into question “whether every litigant who
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enters a courtroom must be draped in a designer suit in order to be believed
by the finder of fact.” Id. at 55.
What we find curious and confounding is why Father has raised and
argued three separate issues that plainly had no impact on the trial court’s
custody determination and, thus, have no bearing on the outcome of this
appeal. “To constitute reversible error, an evidentiary ruling must be both
erroneous and prejudicial to the complaining party.” A.J.B. v. M.P.B., 945
A.2d 744, 751 (Pa.Super. 2008). Even if we agreed with him in all aspects on
his factor two argument, the result would be the same, namely a factor that
favors neither Mother nor Father. Since the ruling did not result in prejudice
to Father, any error was harmless.3
____________________________________________
3 In any event, we discern no error as to the collateral estoppel issues for the
reasons stated by the trial court. See Trial Court Opinion, 12/29/21, at 1-2
(explaining that collateral estoppel did not apply because the issues were not
identical). Nor did the trial court err in its assessment of Father’s credibility.
Father points to nothing in the certified record to call into question the
accuracy of the trial court’s description of Father’s demeanor, such as his
casual attitude toward the proceedings and disinclination to look at the fact-
finder when testifying. Moreover, there is ample evidence in the certified
record to support the trial court’s finding that Father was evasive. For
example, Father testified that Mother “wasn’t even there” when the incident
giving rise to the second PFA petition occurred in a closet in the master
bedroom. In the course of cross-examination that is excruciating to read,
Father maintained that Mother’s office, which a photograph showed to be fully
open to the main area of the master bedroom with no door and a clear view
of the bedroom, was “a separate room in the master bedroom,” as was the
closet within the master bedroom “a separate room.” See N.T. Trial,
11/9/2021, at 449. It is on this basis that Father asserted that Mother “wasn’t
even there” for the incident despite her undisputed presence in an area that
had no wall or other obstruction to separate her from Father and the child.
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Finally, Father is entitled to no relief on his claim that the trial court
improperly excluded evidence he believes “was relevant to the court’s analysis
of the parties’ credibility and motivations.” Father’s brief at 56. “Questions
concerning the admission or exclusion of evidence are within the sound
discretion of the trial court and may be reversed on appeal only when a clear
abuse of discretion was present.” E.K. v. J.R.A., 237 A.3d 509, 522–23
(Pa.Super. 2020) (cleaned up). “We will not find an abuse of discretion merely
because a reviewing court would have reached a different conclusion.” K.D.
v. E.D., 267 A.3d 1215, 1230 (Pa.Super. 2021) (cleaned up). “Rather,
appellate courts will find a trial court abuses its discretion if, in reaching a
conclusion, it overrides or misapplies the law, or the record shows that the
trial court's judgment was either manifestly unreasonable or the product of
partiality, prejudice, bias or ill will.” Id. (cleaned up).
The trial court aptly observed that Father failed to identify in his Rule
1925(a)(2) statement what evidence it had “denied him the opportunity to
admit” and therefore it was “unable to respond to this allegation of error.”
Trial Court Opinion, 12/29/21, at 5. It is well-settled that “[a] concise
statement must be specific enough for the trial court to identify and address
each issue the appellant wishes to raise on appeal.” Mazurek v. Russell, 96
A.3d 372, 377 (Pa.Super. 2014). “[A] concise statement which is too vague
to allow the court to identify the issues raised on appeal is the functional
equivalent to no concise statement at all.” S.S. v. T.J., 212 A.3d 1026, 1031
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(Pa.Super. 2019) (cleaned up). Issues not raised in compliance with Rule
1925 are waived. Id. Since Father did not state his claim of error with
sufficient specificity to allow the trial court to identify the evidence in question
and explain the reasons for its ruling, we are unable to determine whether
any abuse of discretion occurred. Therefore, the issue is waived.
For the above reasons, we are unpersuaded by any of Father’s
arguments that the trial court committed an error of law or abuse of discretion
in ordering Mother to assume primary physical custody of the children.
Therefore, we affirm that portion of the trial court's November 22, 2021 order.
Father’s remaining question is whether that the trial court erred in
concluding that its weighing of the statutory factors warranted granting
Mother sole legal custody of the children. The trial court’s order provided as
follows as to legal custody:
[Mother] shall have sole legal custody of the three subject
minor children. Sole legal custody means the sole right to make
major decisions on behalf of the children, including, but not limited
to, medical, religious[,] and educational decisions. [Mother] and
[Father] are each entitled to full access to any records relating to
the children held by a third party, including but not limited to
school records and medical records.
When [Mother] makes a medical, dental, educational[,] or
other appointment for a child[,] she shall provide [Father] with
notice of the appointment within twenty-four hours of making the
appointment. Both parents may then attend the appointment if
they wish to do so.
Order, 11/22/21, at ¶ 1 (cleaned up).
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Father asserts that “[a]wards of sole legal custody to one parent are
rare,” and that, “even in high conflict cases, Pennsylvania Courts strive to
avoid such awards so as to protect each parent’s fundamental right to
participate in their children’s upbringing.” Father’s brief at 20. He largely
relies on decisional law from the 1980s, long before § 5328 was enacted to
render the prior, distinct test in examining the propriety of legal custody
obsolete.4 See S.T. v. R.W., 192 A.3d 1155, 1170 (Pa.Super. 2018).
Contrary to Father’s suggestions, our examination of a legal custody
order is no different than a physical custody order, which, we reiterate, is as
follows:
Our scope is of the broadest type and our standard is abuse of
discretion. This Court 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, this Court must defer to the trial judge who presided
over the proceedings and thus viewed the witnesses firsthand.
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
____________________________________________
4 The prior legal custody factors were as follows:
(1) whether both parents are fit, capable of making reasonable
child rearing decisions, and willing and be able to provide love and
care for their children; (2) whether both parents evidence a
continuing desire for active involvement in the child’s life; (3)
whether the child recognizes both parents as a source of security
and love; (4) whether a minimal degree of cooperation between
the parents is possible.
S.T. v. R.W., 192 A.3d 1155, 1170 (Pa.Super. 2018) (cleaned up).
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court only if they involve an error of law or are unreasonable in
light of the sustainable findings of the trial court.
B.S.G. v. D.M.C., 255 A.3d 528, 533 (Pa.Super. 2021) (cleaned up).
In employing this familiar standard of review, this Court has repeatedly
affirmed the award of sole legal custody to one parent in instances where the
trial court’s factual findings and consideration of the § 5328(a) factors were
supported by the record. See, e.g., Packirisamy v. Suresh, 262 A.3d 551,
2021 WL 3702580 at *18 (Pa.Super. 2021) (non-precedential decision)
(“[T]he record supports the trial court's factual findings and consideration of
the Section 5328(a) factors, and we will not reweigh the evidence in favor of
Father's request for joint legal and physical custody.”); A.J.D. v. E.K., 1402
WDA 2019, 2020 WL 1490833, at *4 (Pa.Super. 2020) (non-precedential
decision) (affirming order granting the father sole legal custody where the trial
court’s conclusions as to the factors were supported by the record). We
reverse a decision as to sole legal custody if the trial court’s factual findings
are not supported by the record. See, e.g., E.W.L. v. L.V.D.G.-L., 237 A.3d
1031, 2020 WL 2919240 at *9 (Pa.Super. 2020) (non-precedential decision).
Accordingly, we consider the arguments that Father raises to determine
whether the trial court abused its discretion. Father acknowledges that “there
is no dispute that the parties have a conflictual relationship,” but observes
that conflict is common in custody matters. Father’s brief at 22. He cites two
examples of times he and Mother were able to agree on a matter, namely to
take the children to their initial counselor “when it became clear to Father that
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the children were in need of counseling following the parties’ separation,” and
to having the children be seen by the school counselor when the original
counseling “no longer became tenable [sic].” Id. He further cites as
important that “the parties also managed a shared custody arrangement for
over three years.” Id. (cleaned up).
The remainder of Father’s argument does not speak to whether it was
unreasonable for the trial court to conclude that the parties were incapable of
the minimal degree of cooperation necessary to exercise shared legal custody.
Rather, Father asks this Court to reject the trial court’s conclusion that the
parties are equally at fault for the conflict and instead accept his own
testimony about his ability to coparent with Mother and conclude Mother is
the problem.5 Id. at 22-23 (“The uncontroverted evidence presented at trial
demonstrates that Father is, and has been, willing and able to coparent with
____________________________________________
5 In pinning the blame for the conflict on Mother, Father contends that Mother
had the children wear t-shirts that stated, “Don’t Be A Richard.” Father’s brief
at 23 (citing N.T. Trial, at 320). Mother acknowledged that in 2018 she had
the shirts made for herself and a group of friends who all were unhappy with
Richards in their lives but contended that the shirts were then merely stuffed
in a drawer somewhere. The certified record contains no evidence to support
Father’s representation that the children even saw the shirts, let alone that
Mother “had the children wear” them. Father’s other specific example is that
Mother had Father’s contact information saved in her phone under the name
“Not Nice.” Mother acknowledged that she had done this for a brief time early
after the separation, around the time Father called her a “fat lesbian” in front
of the children. See N.T. Trial, 11/1/21, at 130; N.T. Trial, 11/8/21, at 294-
95; N.T. Trial, 11/1-9/21 (Sealed Volume IV), at 10. Neither of these
allegations furthers Father’s argument that the trial court abused its discretion
in granting legal custody to Mother.
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Mother. . . . On the other hand, it is clear that Mother cannot overcome her
animosity for Father, inhibiting an effective coparenting relationship.”); id. at
23 (“Mother accuses Father of making unilateral decisions; however, the
evidence clearly demonstrated that she is the one who does so.”). Father
concludes as follows:
Entirely absent from the record is any evidence indicating
that Father is in some way incapable of making appropriate
decisions for the children or that Father has historically made
decisions that are somehow contrary to the best interest of the
children. Rather, Father offered substantial and credible
testimony and evidence that he plays an active role in meeting
the children’s daily needs, including their educational needs.
Thus, to deprive him of decision-making ability constitutes an
egregious deprivation of Father’s fundamental rights.
Id. at 24-25 (cleaned up).
None of Father’s arguments convinces us that the trial court committed
an abuse of discretion in placing sole legal custody with Mother. Rather, we
conclude that the certified record amply supports the trial court’s factual
finding that both parties are responsible for the conflict and that they have an
inability “to communicate effectively and reach compromise decisions
regarding the needs of the children.” Trial Court Opinion, 11/22/21, at 14.
In addition to the details about the parties’ inability to compromise on
mental health care, the testimony at the custody trial was rife with the parties’
complaints and allegations of one parent not keeping the other in the loop
about appointments and other activities, as well as other “he said, she said”
disputes that were contested or confirmed by reference to text messages and
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Our Family Wizard messages. The evidence reveals that while, as the trial
court observed, the parties generally share the same values about the
children’s education and participation in extracurricular and social activities,
id. at 10, they manifest a chronic inability to agree about how to effectuate
those values. The certified record also supports the trial court’s finding that
Father unilaterally re-enrolled all three children in private school although the
governing custody order specified that the parties were to discuss
transitioning the eldest child to public school for seventh grade. See N.T.
Trial, 11/1/21, at 198-99.
Father’s suggestions that the parties had been able to coparent despite
the conflict are not supported by the record. Father’s agreement to the
children’s initial post-separation counseling was, as he acknowledges, only
given after “it became clear to Father that the children were in need of
counseling,” not as a result of cooperative coparenting. Father’s brief at 22.
As discussed above, Mother’s repeated alerts to the children’s counseling
needs were dismissed by Father. The switch to the school counselor when the
initial arrangement became “no longer . . . tenable,” was, in effect, the result
of Father’s unilateral decision because he withdrew his consent and willingness
to pay. See N.T. Trial, 11/1-9/21 (Sealed Volume IV), at 174, 272.
Moreover, his reliance on the fact that “the parties also managed a shared
custody arrangement for over three years” is misplaced here where, as
discussed above, that shared management failed to serve the children’s best
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interests, most obviously as to their mental health needs, based upon the
parties’ inability to agree.
Finally, to the extent that Father again asks this Court to find him
credible, despite the trial court’s express indication on multiple occasions that
he was not, that is not the role of this Court. See, e.g., E.B. v. D.B., supra
at 468.
We are not unsympathetic to Father’s desire to participate in decisions
about the children’s school, religion, and medical providers. Nonetheless,
even if we might have reached a different conclusion as to legal custody were
we deciding the matter in the first instance, we cannot impose our view where,
as here, the trial court’s conclusion is reasonable in light of its credibility
determinations and sustainable findings of fact.6 See B.S.G. v. D.M.C.,
supra at 533.
____________________________________________
6 Important in our conclusion that the trial court’s order is reasonable is that,
although the court ruled that Mother shall have the authority to make medical,
religious, and educational decisions for the children, its order ensures that
Father will remain fully informed and able to participate in these matters.
Consequently, should Father believe that Mother utilized her authority in a
manner contrary to the children’s best interests, he will have ample notice to
seek court intervention if he deems it necessary. Additionally, we observe
that the award of sole legal custody to Mother, as with any custody order, is
not immutable. Indeed, the trial court noted that it was only necessary based
on the current volatility between the parties and could be changed when “they
demonstrate they are willing to communicate.” Trial Court Opinion, 11/22/21,
at 14.
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Therefore, because Father has presented us with no cause to disturb the
trial court’s order as to legal custody of the children, we affirm that portion as
well as that granting Mother primary legal custody.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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