P.J.A. v. H.C.N. ( 2018 )

J-S37032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.J.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
H.C.N. : No. 63 EDA 2018
Appeal from the Order Entered December 6, 2017
in the Court of Common Pleas of Lehigh County Civil Division at No(s):
2007-FC-0427
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 23, 2018
Appellant, P.J.A. (“Father”), files this appeal from the order dated
December 5, 2017, and entered December 6, 2017,1 in the Lehigh County
Court of Common Pleas, awarding H.C.N. (“Mother”) and him shared legal
custody and Father primary physical custody of their minor son P.C.A., born
in August 2006 (“Child”). After review, we affirm the trial court’s order.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The subject order was dated December 5, 2017. However, while the clerk
also provided notice pursuant to Pa.R.C.P. 236(b) on December 5, 2017, the
clerk did not docket the order and notice until December 6, 2017. Our
appellate rules designate the date of entry of an order as “the day on which
the clerk makes the notation in the docket that notice of entry of the order
has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,
our Supreme Court has held that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113,
115 (1999).
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The trial court summarized the relevant procedural and factual history,
in part, as follows:
Factual Background
By way of very brief background, the parties met in May of
2005, married in February of 2006, and their child, P.C.A., was
born in August of 2006. They separated in March of 2007, and
[Father] filed for divorce and custody on March 30, 2007.
The matter was initially before the Honorable Maria L.
Dantos, and subsequently before the Honorable William E. Ford
until 2013, at which time it was transferred to the undersigned.
In a Memorandum Opinion issued on May 15, 2009, Judge Ford
observed, “Each party initiated vindictive, immature and selfish
acts against the other party beginning primarily in late 2006 and
then throughout the next two years.” [P.J.A. v. H.C.N.], 2395
EDA 2015 (Pa. Super. February 18, 2018) (unpublished
memorandum) (quoting [P.J.A. v. H.C.N.], 2007-FC-0427 (Trial
Court Opinion, May 15, 2009)).
The docket reflects that in the decade since this case was
initiated, the parties have engaged in highly contentious litigation
with one another. Over the intervening years, the parties have
failed to cooperate and to co-parent their child to such a degree
that they have consistently called upon the [c]ourt to make
fundamental parenting decisions, such as determining where their
child should attend pre-school and elementary school, whether
the child would be permitted to attend his school’s before and after
care program, and whether the child could take the bus home from
school. Most recently, the parties had been operating under the
terms of a Custody Order entered on July 7, 2015.[2]
The current round of litigation stems from a Petition for
Modification filed by [Mother] on April 4, 2017. However, the
precipitating events leading up to the filing of that petition began
approximately two weeks prior. On March 24, 2017, [Father]
obtained an Order Granting Emergency Protection from Abuse
from a Magisterial District Judge on behalf of the parties’ minor
____________________________________________
2Pursuant to this order, which, in fact, was not entered until July 8, 2015, the
parties were granted shared legal and physical custody. See Order, 7/8/15.
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child. (Order, [P.J.A. on behalf of P.C.A., a minor, v.
[H.C.N.]], 2017-PF-0291 (March 24, 2017).) A Temporary
Protection from Abuse Order was entered by the Honorable J.
Brian Johnson on March 27, 2017.
According to [Father]’s Petition for Protection from Abuse,
on March 22, 2017, [Mother] “had several violent outbursts
against [P.C.A.] during an overnight dinner visit[.]” (Petition for
Protection from Abuse, March 27, 2018, at 3.) The minor child
allegedly reported to [Father] that [Mother] grabbed the child’s
book bag, screamed at him so close to his face that her spit hit
his face, and she threw an iPad on the floor. ([Id.]) The
Temporary Protection from Abuse Order granted [Father]
temporary custody of the parties’ minor child.
In response, [Mother] filed a Petition for Modification in the
parties’ custody matter. The undersigned held hearings on the
final PFA order and the custody petition. On May 22, 2017, after
conducting hearings on April 12, 2017, May 5, 2017, and May 19,
2017, which included an [in camera] session with the minor child
during which time [Father]’s counsel and [Mother] were present,
the [c]ourt entered an Order dismissing the Petition for Protection
from Abuse on the basis of [Father] presenting insufficient
evidence to support the entry of a final Protection from Abuse
Order.[3] (Order, May 22, 2017, [P.J.A. on behalf of P.C.A. v.
[H.C.N.]], 2017-PF-0291.)
The parties litigated the Petition for Modification in their
custody case over the course of ten days of trial testimony.[4] The
[c]ourt received testimony from several experts, including Drs.
Veronique Valliere, Psy.D., Ronald J. Esteve, Ph.D., Anthony Pisa,
Ph.D., and James Margolis, Ph.D.[,] with respect to custody
evaluations and allegations that [Father] was engaging in parental
alienation against [Mother].
____________________________________________
3This order, which, upon review, was not entered until May 24, 2017,
maintained the suspension of Mother’s physical custody. Order, 5/24/17.
4 At various times throughout these hearings Mother and Father were
represented by counsel, and at other times they were pro se; Mother is an
attorney.
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On December 5, 2017, the [c]ourt entered an Order ruling
on [Mother]’s Petition for Modification, as well as several other
related petitions.[5] The [c]ourt granted the petition in part and
denied it in part. The parties were granted shared legal custody.
[Father] was granted primary physical custody, with periods of
visitation for [Mother] as described more fully in the [c]ourt’s
Order.[6]
[Father] filed a Notice of Appeal on December 28, 2017,[7]
but failed to file a concise statement of errors complained of on
appeal concurrent with his Notice of Appeal. The Superior Court
directed Appellant to file a Concise Statement, which [Father] did
on January 29, 2018.[8]
____________________________________________
5 As indicated above, this order was entered on December 6, 2017.
6 Pursuant to the court’s order, the parties were awarded shared legal custody
of Child. In addition, Father was awarded primary physical custody and
Mother partial physical custody each Thursday from after school or 4:00 p.m.
to Friday a.m. drop off at school and alternating weekends from Friday after
school until Monday morning, as well as a dinner visit each Tuesday from 5:00
p.m. until 8:30 p.m. The order additionally provided, among other things, a
holiday and vacation schedule. Order, 12/6/17, at 33-36.
7 Father filed the instant Notice of Appeal pro se. Counsel entered his
appearance on behalf of Father on April 11, 2018. Mother is not represented
on appeal. We note that Mother submitted a letter dated May 3, 2018, and
filed May 9, 2018, indicating her lack of intent to file a reply brief. See Letter,
5/9/18.
8 Mother requested this Court dismiss Father’s appeal for failure to file a
contemporaneous concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Application to Dismiss, 1/17/18.
In an order dated January 18, 2018, Father was ordered to file a Rule 1925(b)
statement by January 29, 2018. Father complied, filing a Rule 1925(b)
statement on January 29, 2018. As such, this Court denied Mother’s motion
to dismiss on February 2, 2018. See In re K.T.E.L., 983 A.2d 745, 748
(Pa.Super. 2009) (holding that the appellant’s failure to comply strictly with
Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver of her claims, as there was no
prejudice to any party); Cf. Mudge v. Mudge, 6 A.3d 1031 (Pa.Super. 2011)
and J.M.R. v. J.M., 1 A.3d 902 (Pa.Super. 2010) (failure to file a Rule 1925(b)
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...
Trial Court Opinion (“T.C.O.”), 2/23/18,9 at 1-5.
On appeal, Father raises the following issues for our review:
1. Was the trial court’s conclusion that Dr. Esteve did not have a
conflict of interest not supported by the record, causing the
assessment of Dr. Esteve’s credibility to be based on an
inaccurate fact?
2. Did the lower court err when it reversed itself with respect to
whether [Father] was entitled to the underlying data that Dr.
Esteve used in composing his forensic report regarding
[Mother]?
Father’s Brief at 4.10
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
____________________________________________
statement of errors complained of on appeal when ordered by the Superior
Court will result in a waiver of all issues on appeal).
9While dated and mailed February 22, 2018, the trial court’s order and opinion
were docketed February 23, 2018.
10We observe that Father states his issues somewhat differently than he did
in his Rule 1925(b) statement. Nevertheless, we find that Father has
preserved for appellate review his challenges to the trial court’s order.
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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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015) appeal denied, 635
Pa. 754, 129 A.3d 521 (2016).
This Court consistently has held:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)). In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations
omitted).
We first consider whether the December 6, 2017, order was properly
appealable as a final order.
“‘[S]ince we lack jurisdiction over an unappealable order it is
incumbent on us to determine, sua sponte when necessary,
whether the appeal is taken from an appealable order.’” Gunn v.
Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505,
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508 (Pa.Super. 2009) (quoting Kulp v. Hrivnak, 765 A.2d 796,
798 (Pa.Super. 2000)). It is well-settled that, “[a]n appeal lies
only from a final order, unless permitted by rule or statute.”
Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.Super. 2013).
Generally, a final order is one that disposes of all claims and all
parties. See Pa.R.A.P. 341(b).
K.W. v. S.L. & M.L. v. G.G., 157 A.3d 498, 501-02 (Pa.Super. 2017).
A custody order is final and appealable after the trial court has concluded
its hearings on the matter and the resultant order resolves the pending
custody claims between the parties. See G.B. v. M.M.B., T.B. & A.B., 670
A.2d 714 (Pa.Super. 1996).
In Kassam v. Kassam, 811 A.2d 1023 (Pa.Super. 2002), appeal
denied, 573 Pa. 704, 827 A.2d 430 (2003) the trial court, as part of its custody
order, expressly indicated that it would retain jurisdiction and conduct a
review hearing approximately eight months later on May 2, 2002. After
discussing relevant case law, this Court held that “by expressly retaining
jurisdiction and scheduling a hearing for a date certain, the trial court in the
instant case apparently intended to keep the issues under consideration[.]”
Kassam, 811 A.2d at 1028. This Court previously described the distinction
between custody orders that anticipate further proceedings only upon the
application of a party and orders that schedule a future hearing for a date
certain as follows:
In Sawko v. Sawko, [625 A.2d 692 (Pa.Super. 1993)],
we touched upon the issue of finality in a situation which
presented a middle ground between [Parker v. MacDonald,
496 A.2d 1244 (Pa.Super. 1985)] and [Cady v. Weber, 464
A.2d 423 (Pa.Super. 1983),] on the one hand (where the
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order appealed from was entered after a full hearing and was
intended to constitute a determination of the ultimate issues
between the parties) and [Williams v. Thornton, 577 A.2d
215 (Pa.Super. 1990)] on the other (where the order
appealed from was entered before a full hearing and was
intended to determine the parties’ rights only during the
pendency of the litigation).
Sawko involved an appeal from an order entered in
response to a mother’s petition to modify an order entered
five weeks earlier which awarded primary custody to her
child’s father. The trial court conducted a hearing on the
petition to modify at which both parties were permitted to put
on as much evidence as they wished. At the conclusion of
the hearing, the court entered an order which denied the
petition to modify primary custody but increased the
mother’s partial custody rights and scheduled an additional
review hearing about four months in the future. This court
noted, without elaboration, that the order was interlocutory
and that mother’s appeal therefrom was premature and
subject to quashal. [Sawko,] 625 A.2d at 696.
The reasons for this conclusion are clear. Although the
court’s order was entered after a full hearing, it clearly was
not intended to constitute a complete resolution of the issues
pending between the parties. Unlike the order in Parker,
supra, or Cady, supra, the trial court’s order did not
completely resolve the issues raised by the parties unless and
until further proceedings were initiated by a party. Rather,
the Sawko court’s order, although declining to grant the
ultimate relief sought by the petitioner-mother, made an
adjustment in its previously ordered custody arrangement
and scheduled a further review of the matter. By scheduling
further review for a date certain rather than leaving it up to
the parties to seek such review, the trial court made it clear
that the ultimate issues between the parties remained under
consideration. The court’s order was merely intended, in light
of the brief time period between its initial custody order and
the petition for modification, to allow the court more time to
study the effect of the ordered arrangement upon the child
and to make a final determination at a later date as to
whether a modification of primary custody would be in the
child’s best interest.
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E.B. v. M.M.B., 670 A.2d 714, 719-20 (Pa.Super. 1996) (en banc).
Instantly, the order in question is a final order. While the trial court
anticipated and referenced future hearings related to a more recently filed
proposed relocation petition, the court clearly intended the order in question
to be a final resolution as to the filings at issue and the evidence presented in
support thereof. Unlike other instances, including during the pendency of the
relevant motions/petitions, the order was not indicated as an interim order.
Additionally, the order did not schedule further proceedings with regard to the
filings in issue. Rather, the court entered a forty-three page order which
exhaustively examined the seventeen custody factors set forth in 23 Pa.C.S.A.
§ 5328(a). Thus, we next consider Father’s issues on appeal which raise
challenges as to Ronald J. Esteve, Ph.D., who was qualified as an expert
witness in the field of forensic psychology with a specialty in family structure
interaction, N.T., 7/5/17, at 15, and appointed by the court to perform a
custody evaluation, Order, 7/13/17, at ¶9.
As Father’s issues involve pure questions of law, our standard of review
is de novo, and our scope of review is plenary. See Gilbert v. Synagro
Cent., LLC, 634 Pa. 651, 131 A.3d 1, 10 (2015); Harrell v. Pecynski, 11
A.3d 1000, 1003 (Pa.Super. 2011); In re Wilson, 879 A.2d 199, 214
(Pa.Super. 2005) (en banc) (citations omitted).
Pennsylvania Rule of Civil Procedure 1915.8 provides:
Rule 1915.8. Physical and Mental Examination of Persons.
(a) The court may order the child(ren) and/or any party to submit
to and fully participate in an evaluation by an appropriate expert
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or experts. The order, which shall be substantially in the form set
forth in Rule 1915.18, may be made upon the court’s own motion,
upon the motion of a party with reasonable notice to the person
to be examined, or by agreement of the parties. The order shall
specify the place, manner, conditions and scope of the
examination and the person or persons by whom it shall be made
and to whom distributed. In entering an order directing an
evaluation pursuant to this rule, the court shall consider all
appropriate factors including the following, if applicable:
(1) the allocation of the costs, including insurance
coverage, if any, attendant to the undertaking of the
evaluation and preparation of the resultant report and
court testimony of any appointed expert;
(2) the execution of appropriate authorizations
and/or consents to facilitate the examination;
(3) any deadlines imposed regarding the completion
of the examination and payment of costs;
(4) the production of any report and of underlying
data to counsel and/or any unrepresented party upon
the completion of the examination; and
(5) any additional safeguards that are deemed
appropriate as a result of the alleged presence of
domestic violence and/or child abuse.
(b) Unless otherwise directed by the court, the expert shall
deliver to the court, to the attorneys of record for the parties, to
any unrepresented party, and to the guardian ad litem and/or
counsel for the child, if any, copies of any reports arising from the
evaluation setting out the findings, results of all tests made,
diagnosis and conclusions. No reports shall be filed of record or
considered evidence unless and until admitted by the court. Any
report which is prepared at the request of a party, with or without
a court order, and which a party intends to introduce at trial, must
be delivered to the court and the other party at least thirty days
before trial. If the report or any information from the evaluator is
provided to the court, the evaluator shall be subject to cross-
examination by all counsel and any unrepresented party without
regard to who obtains or pays for the evaluation.
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(c) If a party refuses to obey an order of court made under
subdivision (a) of this rule, the court may make an order refusing
to allow the disobedient party to support or oppose designated
claims or defenses, prohibiting the party from introducing in
evidence designated documents, things or testimony, prohibiting
the party from introducing evidence of physical or mental
condition, or making such other order as is just. The willful failure
or refusal of a party to comply with an order entered pursuant to
this rule may also give rise to a finding of contempt and the
imposition of such sanctions as may be deemed appropriate by
the court, including, but not limited to, an adverse inference
against the non-complying party.
(d) A petition for contempt alleging failure to comply with an order
entered pursuant to subdivision (a) of this rule shall be treated in
an expedited manner.
Pa.R.C.P. 1915.8.
Initially, Father asserts the trial court erred in determining that Dr.
Esteve did not have a conflict of interest. Father’s Brief at 11-15. Father
argues that Dr. Esteve had a conflict as he served in a “dual role” as Mother’s
psychological evaluator as well as a neutral custody evaluator appointed by
the court.11 Id. at 12. Father states:
____________________________________________
11 We observe that, although Father’s argument appears to be based on the
September 6, 2017, testimony of Dr. Anthony Pisa who purported to opine
that Dr. Esteve faced an ethical conflict, the Notes of Testimony from
September 6, 2017, are not included as part of the certified record. While
requested by both parties, it does not appear from the docket that these notes
were filed and is unclear from the record if all ordered fees were paid.
Regardless, as there are suggestions that they were completed, this Court,
through its Prothonotary, unsuccessfully attempted to obtain them from
Lehigh County. Although we do not penalize Father, we caution that it is
Father’s duty as the appellant to request and make the payment for any
transcript necessary, as well as to make sure that the complete certified record
is transferred from the lower court. See Pa.R.A.P. 1911(a); Pa.R.A.P. 1931;
see also Commonwealth v. Preston, 904 A.2d 1, 7-8 (Pa.Super. 2006) (en
banc).
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In particular, Dr. Esteve functioned in a dual role, and as
such had a clear conflict of interest. On the one hand, he was
[Mother]’s paid psychological evaluator; on the other hand he
allowed himself to be appointed as the court’s “neutral” custody
evaluator. The lower court concluded that Dr. Esteve did not have
a conflict of interest because he thought he was acting as a court
appointed psychological evaluator of [Mother], and thus, he
claimed his duties were to the court and not one of the parties.
The lower court’s acceptance of this conclusion is not supported
by the facts.
Id. As such, Father argues that this impacts the weight afforded Dr. Esteve’s
testimony. Id. at 14.
Notably, when the issue of a conflict was raised during the September
13, 2017, hearing, the trial court stated, “As I said, I believe that all the
allegations with regard to ethical conflicts . . . raised about Dr. Esteve’s
performance go to the weight that I would give Dr. Esteve’s testimony in this
proceeding.” N.T., 9/13/17, at 32. Likewise, in a footnote to the December
6, 2017 order, the court noted:
Dr. Esteve testified September 13, 2017 that he viewed the court
order from July 12, 2017 as requiring him to perform the custody
evaluation of the parties and child as the court-appointed expert,
and not as [Mother]’s witness. Dr. Esteve denied he had an ethical
conflict in continuing to perform the custody evaluation after
performing the psychological evaluation of [Mother]. Esteve
stated while he would have preferred the [c]ourt’s order to be
worded differently, he understood the [c]ourt’s interest in
attempting to expedite the custody evaluation.
. . . The [c]ourt had the discretion to determine whatever weight
and credibility, if any, was to be afforded to Dr. Esteve’s
testimony, in light of his already performing the psychological
evaluation of [Mother].
Order, 12/6/17, at 42-43 n.6.
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Further, in concluding that Dr. Esteve did not have a conflict of interest
in its Rule 1925(a) Opinion, the trial court reasoned:
In his next issue on appeal, [Father] asserts the [c]ourt
erred by appointing Dr. Esteve to conduct a custody evaluation.
On June 23, 2017, the [c]ourt directed Dr. Esteve to perform a
custody evaluation pursuant to Pa.R.C.P. 1915.8. [Father]
strenuously objected to Dr. Esteve performing the evaluation. He
asserted Dr. Esteve had an ethical conflict on the grounds that he
had performed a psychological evaluation of [Mother] pursuant to
a prior Order filed on May 9, 2017. [Father] instead argued that
the custody evaluation should be conducted by Dr. Veronique
Valliere, the same person [Father] sought to retain to perform a
psychological evaluation on him.
On July 5, 2017, Dr. Esteve testified under questioning by
[Mother] about the initial directive from the [c]ourt that he
complete a custody evaluation. He indicated:
[T]he [c]ourt order was, in part, asking me to do a
custody evaluation or at least offer custody
recommendations. And that goes beyond the scope
of what I was able to do. I had the opportunity to
interview [Mother] clinically as well as administer
objective psychological testing, and I had the
opportunity to interview [P.C.A.] That falls far short
of the opportunity to do a custody evaluation. If it
was a custody evaluation, I would have had the
opportunity to meet with your son in your presence.
I would have also met with him in his father’s
presence. And, of course, I would have done virtually
the same thing with the father that I did with you. So,
I was not able to do that. What I was able to do, and
I made it very clear to the [c]ourt, the limited scope
of what I was able to do is offer an opinion about
[Mother] and offer an opinion about your son to the
extent I could with the information that was available
to me.
(N.T. July 5, 2017, at 15-16.)
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After that hearing date, Dr. Esteve was directed to perform
a custody evaluation pursuant to Pa.R.C.P. 1915.8.[12] On
September 6, 2017, the parties were scheduled for a pre-trial
conference to determine the date for the continuation of their
custody trial. [Father] appeared with Dr. Anthony Pisa, Ph.D. at
the pretrial conference. He elicited testimony from Dr. Pisa that[,]
based on specialty guidelines promulgated by the American
Psychological Association, Dr. Esteve should have considered
himself ethically compromised from performing the custody
evaluation at the [c]ourt’s direction after he performed a
psychological evaluation of [Mother]. Dr. Pisa conceded that he
only testified based on [Father]’s version of events, and that he
had not spoken to Dr. Esteve, reviewed Dr. Esteve’s report, or
read Dr. Esteve’s testimony from July 5, 2017. Dr. Pisa further
indicated he was unwilling to perform the child custody evaluation
himself because it would be detrimental to have too many
professionals examining the minor child.
On September 13, 2017, Dr. Esteve returned to court and
testified that he believed he was performing a custody evaluation
at the behest of the [c]ourt rather than as an expert witness for
either party. (N.T. September 13, 2017, at 5-6.) Before receiving
any testimony from Dr. Esteve, the [c]ourt inquired about the
testimony from Dr. Pisa concerning a potential ethical conflict he
might have. The [c]ourt asked whether Dr. Esteve believed he
“should have deemed [himself] ethically precluded from
proceeding with the custody evaluation.” ([Id.] at 9.) Dr. Esteve
responded:
A. I think it’s incorrect. As I stated, my initial contact
was with you, Your Honor. And I understood from the
beginning that this was a custody dispute, and that
was the question, in essence, that you and the [c]ourt
____________________________________________
12 By way of clarification, pursuant to the order dated May 8, 2017, and
entered May 10, 2017, the parties were free to engage a psychologist to
evaluate the child and have the psychologist retained perform an evaluation
of the party. The order dated June 20, 2017, and entered June 23, 2017,
which modified the prior order dated May 19, 2017, requiring psychological
evaluation of the parties, including a custody evaluation for which the child
shall be made available, additionally allowed evaluation of the relationship of
the party and the child and evaluation of the child. Finally, pursuant to order
dated July 11, 2017, and entered July 13, 2017, Dr. Esteve was specifically
appointed to conduct a custody evaluation.
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was [sic] asking [of] me. And as I said a moment ago,
I -- I don’t know what your reasoning was, but I
assume that you were trying to be as parsimonious as
possible in the way that you created that first Court
Order, and so, you limited the scope of what I could
do. Based on, perhaps, my recommendations,
because I know I made that recommendation in my
report as well as here in court, I viewed the second
Court Order as an addendum to that first Court Order
and completed what I thought I was being asked to
do in the first place. And I understood from the
beginning that this was all through contact from the
[c]ourt. It wasn’t contact from either of the parties.
I don’t work for either of them.
([Id.] at 9-10.)
The [c]ourt also asked whether Dr. Esteve took any steps
“to see if there was any other conflict that may arise from [his]
performance of the custody evaluation in addition to the
psychological assessment or evaluation of [Mother].” ([Id.] at
11.) Dr. Esteve testified:
A. The short answer is -- is no, but let me explain.
First of all, I didn’t know that was a criticism that was
extended. Everything in retrospect, I suppose, is
easy. Listening to some of the criticisms that I’ve
heard, as well as some of the things that [Father] has
indicated in some pleadings that I saw, it might have
been smart for me to do that. Of course I couldn’t
know that at the time, and I explained to [Father] in
my very first phone contact with him exactly what I
was doing, and he indicated his understanding. As a
result, it didn’t seem necessary.
Q. His understanding of what?
A. Of exactly what my role was.
Q. You explained that to [Father]?
A. Absolutely. In my first phone conversation with
him, I spoke at length with him, as well as I spoke
with him about what my preferences were.
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([Id.] at 11-12.)
As the record reflects, the [c]ourt addressed [Father]’s
concerns about any ethical conflicts with Dr. Esteve before
receiving testimony from him on the custody evaluation he
performed in the within matter. The custody evaluation conducted
pursuant to the July 11, 2017 Order was different from the
psychological evaluation the [c]ourt ordered each party to obtain
in the May 19, 2017 Order. Dr. Esteve testified he operated under
the belief that he was acting on behalf of the [c]ourt, not as an
expert testifying for or against either of the parties. His
evaluations were conducted in furtherance of that process, not to
provide testimony designed to advance either party’s position in
litigation. Dr. Esteve’s purpose was to independently conduct a
custody evaluation, which necessarily entailed working with the
parties in order to provide a report to the [c]ourt from a
psychological perspective for the [c]ourt to consider in
establishing a custody arrangement. Dr. Esteve credibly testified
that there was not an ethical violation, and the testimony from Dr.
Pisa was not persuasive to the [c]ourt. . . .
T.C.O. at 12-15 (footnotes omitted).
The court further commented as to Dr. Esteve as follows:
The [c]ourt also fully considered Dr. Pisa’s criticism of Dr.
Esteve’s performance of the custody evaluation, but noted that
Dr. Pisa’s opinion was based solely what [Father] told him. Pisa
did not speak with Esteve, did not review Esteve’s report, or
review Esteve’s testimony. Pisa even acknowledged having an
additional psychologist perform a custody evaluation as [Father]
implies was needed would be ill-advised based on how many
evaluations the child had already undergone. The [c]ourt
concluded it was more efficient and effective for Dr. Esteve to
perform the custody evaluation since he had already been
involved in the case to perform a psychological evaluation of
[Mother]. Additionally, the [c]ourt requested and received
testimony from Dr. Veronique Valliere whom [Father] wanted to
conduct the custody evaluation, regarding her abuse assessment
of the parties and the child in which Dr. Valliere concluded
[Mother] had not abused the child and [Father] had not alienated
the child from his mother.
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In this case, the [c]ourt explored any ethical conflicts Dr.
Esteve may have had prior to receiving testimony about his
report, [Father] was permitted to cross-examine Dr. Esteve, and
did so extensively. (N.T. September 13, 2017, at 95-196.) When
Dr. Esteve returned to continue his testimony on October 17,
2017, [Father] was represented by Nancy Schneider, Esq., who
called Dr. Esteve on Direct as of Cross. Attorney Schneider also
conducted an extensive cross-examination of Dr. Esteve on that
date. (N.T. October 17, 2017, at 7-78.) Accordingly, the [c]ourt
properly considered Dr. Esteve’s testimony, subject to [Father]’s
cross-examination. . . .
Id. at 15-17.
Upon review, we agree. Dr. Esteve expressed multiple times that his
initial contact with regard to the instant matter was with the trial court and
his belief was always that he was working on behalf of the court. N.T.,
9/13/17, at 5-6, 9-10, 12, 33, 96-97, 100-01, 104-05; see also N.T.,
10/17/17, at 55-56. Dr. Esteve stated, “It was an extension [of the] [c]ourt.
It’s the [c]ourt that contacted me. . . . It was the [c]ourt who indicated to me
that I would be hearing from the [c]ourt, and, of course, it was the Court
Order that I received.” N.T., 9/13/17, at 6. He further indicated, “. . . As I
stated, my initial contact was with you[,] Your Honor. . . . And I understood
from the beginning that this was all through contact from the [c]ourt. It
wasn’t contact from either of the parties. I don’t work for either of them.”13
Id. at 10. As such, Dr. Esteve viewed himself as “an extension [of the] court,”
id. at 6, and believed that he was not “ethically precluded from proceeding
with the custody evaluation,” id. at 9-10.
____________________________________________
13Upon review, it appears that Dr. Esteve was contacted by the court and
participated by telephone in a proceeding on May 4, 2017.
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While he admitted that it would be a conflict to conduct a custody
evaluation if Mother first had contacted him and he had performed a
psychological assessment, Dr. Esteve reiterated that was not the case
instantly. Id. at 32-33. Specifically, the court inquired “. . . if, in fact, it was
[Mother] who initially contacted you to perform a psychological evaluation of
her within the scope of this custody case, do you believe that a subsequent
appointment of you to perform a custody evaluation of the parties with the
child posed [an] ethical conflict for you?” Id. at 32-33. Dr. Esteve responded,
“Yes. Of course[,] that would have been [an] ethical conflict. Then she is the
one who would have hired me, and then I would have been her expert. At the
risk of redundancy, I’ll say it again: That is not how the contact was initiated.”
Id. at 33.
Regardless of whether he first conducted a psychological assessment of
Mother, the trial court believed the testimony of Dr. Esteve, which remained
consistent throughout multiple hearings, and found it credible that his initial
contact was with the court and he always perceived himself as working on
behalf of and performing an evaluation on behalf of the court. As the trial
court is entitled to its determinations as to credibility and weight, we find that
the court did not abuse its discretion.
Father next argues the trial court erred in denying production of and/or
access to the underlying raw data utilized by Dr. Esteve. Father’s Brief at 15-
16. In noting that the court initially ordered the disclosure of such information
and then reversed its ruling, Father maintains that the trial court abused its
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discretion. Id. Father posits that the ethical concerns raised by Dr. Esteve
regarding the release of the raw data, as well as the confidentiality protections
examined by the court, are misplaced. Id. at 16-17. Further, Father asserts
he was prejudiced in his ability to cross-examine Dr. Esteve. Id. at 19-20.
As to its ultimate denial of the release of the underlying raw data, the
trial court stated:
On August 22, 2017, [Father] filed a Motion for Discovery of
Expert’s File in which he endeavored to require Dr. Esteve to turn
over his file on the parties’ matter, including all notes and
tests/test results for [Mother]. He filed a substantially similar
motion on the same day requesting access to the files for Dr. Jack
Gerhard. On May 19, 2017, [Mother] testified she engaged in
several counseling sessions with Dr. Gerhard for anger
management. [Father] asserted that he required access to both
files “to determine whether [their reports], recommendations and
conclusions are supported by the underlying data, notes,
observations and information gathered.” (Motion for Discovery of
Expert’s File, August 22, 2017, at 2-3.)
On September 11, 2017, the [c]ourt entered an Order with
a Memorandum Opinion within which it observed that Pa.R.C.P.
1915.8 entitles the parties to a copy of “any report arising from
the [court-ordered] evaluation setting out the findings, results of
all tests made, diagnosis and conclusions.” Pa.R.C.P. 1915.8(b).
Consequently, the [c]ourt granted [Father]’s request in part. The
[c]ourt required that Dr. Esteve “provide copies of his report
prepared as a result of a custody evaluation, along with all tests,
test data, test results, collateral information, psychological
assessments, and psychological reports he utilized or relied upon
in the preparation of his report, to the parties.” (Order,
September 11, 2017, at 1.) The [c]ourt denied [Father]’s request
for “copies of any and all interviews, background information and
notes, along with professional reference guidelines.” ([Id.]) With
respect to Dr. Gerhard, the [c]ourt directed Dr. Gerhard to
“provide copies of any documents in his possession, custody or
control related to the dates, times, and length of sessions of anger
management counseling provided by Dr. Gerhard to the
Defendant.” ([Id.])
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After the [c]ourt entered the September 11, 2017 Order,
[c]ourt staff e-mailed a copy of it to the parties as well as Dr.
Esteve. Roughly three hours later, Dr. Esteve responded to
chambers and copied the parties. He indicated he was unable to
provide raw data directly to the parties because it is an ethical
violation and the files are partially copyrighted.
During the hearing conducted on September 13, 2017, Dr.
Esteve testified, consistent with his correspondence with the
[c]ourt and the parties, that he was unable to release the “raw
data” Appellant had requested because doing so would violate the
professional ethical guidelines prohibiting psychologists from
releasing that information to individuals who are not
psychologists. Based upon that testimony, the [c]ourt advised
[Father], “If you identify a person who’s going to offer an expert
opinion regarding Dr Esteve’s conclusions, [Father], I’ll hear you
out in another motion as to the release of those documents to that
expert.” (N.T. September 13, 2017 at 121.)
[Mother] filed an Emergency Motion for Dr. Margolis’ Case
File on September 28, 2017, which requested substantially similar
raw data from [Father]’s identified expert as the data [Father]
sought from Dr. Esteve. On October 3, 2017, [Father] filed a
Motion to Compel, seeking the same data from Dr. Esteve to
provide it to Dr. Anthony Pisa. In [Father]’s Motion to Compel, he
argued he would be retaining Nancy Schneider, Esq., JD, Ph.D.,
whose “appearance as Father’s attorney will make Dr. Esteve’s
argument at the September 13, 2017 hearing moot. As a
practicing mental health professional of 38 years, Dr. Schneider is
able to receive and review Dr. Esteve’s file.” (Plaintiffs Motion to
Compel Production of Documents in Accordance with the Order
Filed September 11, 2017, at 3.)
On October 10, 2017, the [c]ourt deferred consideration of
the parties’ motions until the time of trial. However, the [c]ourt
directed that both Dr. Esteve and Dr. Margolis bring their
documents with them to trial on October 16-18, 2017, the
previously-scheduled dates for resumption of the parties’ custody
trial. On October 17, 2017, Dr. Esteve testified once again about
the “raw data,” and he explained to Attorney Schneider:
[A]s I’m sure you know, I have an obligation to make
sure that no damaging information is released to
either party. Of course, once I give up data, I have
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no idea how that data will be used. Neither [Mother]
nor [Father] are qualified to review a psychological
data, as I’m sure you also know.
And how I made it clear is that I could make the data
available to another professional, and that is another
clinical psychologist, if they wanted to offer an
individual. I do this to protect the integrity of the data
and also to protect the, both parties. They’re already
a very adversarial relationship, and I certainly
wouldn’t want to add to that by a misunderstanding
or misrepresentation of data.
(N.T. October 17 2017, at 13-14.)
The [c]ourt did not direct Dr. Esteve to turn over his raw
data to the parties or Attorney Schneider. In his appeal, [Father]
now asserts the [c]ourt erred in that decision.
...
It is also noteworthy that the [c]ourt carefully reviewed
Pennsylvania Rule of Civil Procedure 1915.8 in determining what
materials could be released to the parties. (See Order, October
10, 2017, at 3 n.i.) []
For these reasons, the [c]ourt did not abuse its discretion or
commit an error of law in precluding the release of any expert’s
raw data to the parties. The [c]ourt’s holding was consistent with
[M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012)] and the applicable
statutory law governing confidentiality. . . . No relief is due on
appeal.
T.C.O. at 23-28.
As is stated in the footnote to the court’s order dated October 10, 2017,
and entered October 11, 2017:
. . .Under Pa.R.C.P. 1915.8(a), “[i]n entering an order directing
an evaluation pursuant to this rule, the court shall consider all
appropriate factors including the following, if applicable:. . .(4) the
production of any report and of underlying data to counsel and/or
any unrepresented party upon completion of the examination;”
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(emphasis added) However, under subsection (b) of the same
rule, it states, “Unless otherwise directed by the court, the expert
shall deliver to the court, to the attorneys of record for the parties,
and to any unrepresented party, and to the guardian ad litem for
the child, if any copies of any reports arising from the evaluation
setting out the findings, results of all tests made, diagnosis, and
conclusions.” The language of the rule does not require the prior
disclosure of the tests, test data, collateral information, scoring
sheets, questionnaires, checklists, or social and/or other
documented history requested by the parties. Although a court
may consider the “production of. . .underlying data to counsel
and/or any unrepresented party” as a factor in ordering an
evaluation under Pa.R.C.P. 1915.8(a), that very same rule does
not require the release of the “underlying data” in advance to a
party for a custody proceeding. . . .
Order, 10/10/17, at 3-4 n.i. (emphasis in original).
The court reiterated at the hearing on October 17, 2017, that, pursuant
to Pennsylvania Rule of Civil Procedure 1915.8, “there’s no requirement to
disclose the raw data. There’s a requirement to release the report.” N.T.,
10/17/17, at 19. “. . . My legal interpretation of the rule, regardless of what
the ethical concerns are, . . . is that the rule itself doesn’t require the
disclosure of the raw data.” Id. at 20.
Again, we agree. Pennsylvania Rule of Civil Procedure 1915.8(b)
provides, in part: “Unless otherwise directed by the court, the expert shall
deliver to the court, to the attorneys of record for the parties, to any
unrepresented party, and to the guardian ad litem and/or counsel for the child,
if any, copies of any reports arising from the evaluation setting out the
findings, results of all tests made, diagnosis and conclusions. . . .”
Pa.R.C.P. 1915.8(b) (emphasis added). As recognized by the trial court, the
rule does not contemplate the release of underlying raw data, but only the
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report. Moreover, the trial court permitted counsel to review requested
elements of raw data from Dr. Esteve’s file when requested at the hearing on
October 17, 2017, and to examine Dr. Esteve regarding same. See N.T.,
10/17/17, at 32-43. Hence, regardless of any additional ethical concerns as
expressed by Dr. Esteve, the trial court did not err in its denial of the disclosure
of Dr. Esteve’s raw data.14 For the foregoing reasons, we affirm the order of
the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/18
____________________________________________
14 While the court additionally references and examines confidentiality
protections and M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012), we find this
not applicable, as Dr. Esteve was not in a treatment situation with regard to
this matter, but rather served as an evaluator and expert.
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