J.R. v. L.T. ( 2017 )

J-A16005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.R., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L.T.,
Appellee No. 60 WDA 2017
Appeal from the Order Dated December 21, 2016
In the Court of Common Pleas of Allegheny County
Family Court, at No(s): FD 07-003697-004
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER,* J.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 28, 2017
In his tenth appeal, J.R. (Father) appeals from the order of December
21, 2016,1 which enforced the legal custody provisions of the parties’ March
24, 2015 custody order. We affirm and remand for a determination of
counsel fees to be awarded to Mother.
____________________________________________
1
There are actually two orders at issue in this appeal. As explained by the
trial court:
The reason there are two orders is because each party submitted
a proposed order with their respective motion. For
housekeeping purposes, [the trial court] typically will deny one
proposed order in full with the direction to “see order of same
date.” The [trial court] will then use the second proposed order
as the template for its ultimate decision. Here, the [trial court]
mistakenly abandoned this good practice in the haste of the
motions argument … [.]
Trial Court Opinion, 2/8/2017, at fn. 1.
*
Retired Senior Judge assigned to the Superior Court.
J-A16005-17
The trial court summarized the protracted history of this case as
follows.
[Father and L.T. (Mother)] are parents to a nine-year-old
son [J.R. Jr., born April 2007 (Child)]. The history of this custody
case is the history of Father’s very litigious conduct. Litigation
greatly increased after March 2015, when after a custody
hearing, [the trial court] awarded Mother the sole legal custody
authority to make medical and educational decisions on behalf of
[Child]. Father was named the sole legal custodian on matters
pertaining to [Child’s] optical, dental and orthodontic needs.
The driving force behind [the trial court’s] division of legal
custody was Father’s record of animosity on this case. In its
decision, which has long since been affirmed by [this Court, the
trial court] noted instances of Father’s hostility and inability to
communicate or cooperate with Mother. This behavior, which
the [trial court] described then as stalking, was so egregious
that it was — and still is — in [Child’s] best interests if the
custody order separated the co-parenting as much as possible.
The physical schedule was ordered to be week on week off. The
parties need not [obtain] the other’s prior approval to enroll the
child in extracurriculars. And the legal decisions were divided
such that the respective parent was put in exclusive charge of
certain domains.
Among the reasons for this custody scheme was [the trial
court’s] desire to make the custody order “as simple as possible,
as clear-cut as possible,” an expression that soon became
Father’s favorite chapter and verse as he has routinely quoted it
back to the [trial court] in virtually all motions’ arguments and in
nearly every one of Father’s petitions.
The genesis of the instant appeal was Mother’s discovery
that Father had been taking [Child] to see a therapist, and that
he had done so for 18 months, unilaterally, and in violation of
the custody order. Father had told Mother that he wanted to
take [Child] to a therapist in June 2015. Mother was against
individualized therapy from the onset, but she had told Father
she would reconsider her position if [Child] was first reevaluated
by the cognitive psychologist who had previously determined
that [Child] was too young for individualized therapy. It was
Mother’s apparent understanding that [Child] did not receive
individualized therapy as the parents never made arrangements
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J-A16005-17
to have [Child] reevaluated. Father contends that Mother knew
and thus implicitly consented. Fast forward 18 months later,
when in December 2016 Mother inadvertently received a $100
bill for [Child’s] psychological services and learned that Father
had gone against both Mother’s wishes and the [c]ustody [o]rder
and enrolled [Child] in therapy anyway. Mother immediately
brought the subject [petition for enforcement and special relief]
seeking to end this practice as well as recoup the $100 copay.
At the motions’ argument, Mother articulated her reasons
against individualized therapy, citing the previous evaluation that
[Child] was too young. However, Mother was amicable to
therapy if it was conducted in a family setting. Father could not
articulate any of his reasons. Instead, he became so disruptive
and hostile to both [the trial court] and opposing counsel, even
after warnings from both [the court] and the deputy present in
the room, that [the trial court] was forced to discontinue the
motions’ argument and issue a ruling.
The ruling interpreted and enforced Paragraph 4 of the
March 24, 2015 Custody Order which provides: “All decisions
involving legal custody shall be shared with the exception of the
following: [list omitted].” Absent from this list was any mention
of mental health services. Thus, mental health issues would be
one of the few matters where the parents would need to be in
agreement before one parent took any action. At the motions’
argument, the [trial court] was prepared to enforce Paragraph 4,
which would effectively prohibit Father from taking [Child] to
individualized therapy absent Mother’s consent. However,
despite Father’s disruption, Mother was able to articulate that
she would not be opposed [Child’s] enrollment in therapy so long
as it was conducted in a family setting. As such, [the trial court]
ordered that Paragraph 4 continues to require mutual consent
for mental health issues, save for family-style therapy, where
Father can enroll [Child]. The [trial court] further ordered that
[Child’s] mental health records shall be accessible by both
parents, just like [Child’s] medical records, optical records, etc.[,
and that Father pay the $100 copay Mother had received for
Child’s therapy].
Trial Court Opinion, 2/8/2017, at 1-4.
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J-A16005-17
Father timely filed a notice of appeal, and complied with the trial
court’s order directing him to file a concise statement of matters complained
of on appeal. The trial court filed its opinion on February 8, 2017.
Father states the following inartfully phrased questions for our review.
1. Did the trial court err committing an abuse of discretion
and/or an error of the law by, inter alia, modifying the
custody order, notwithstanding its failure to conduct a
modification hearing?
2. In regard to [] Mother’s access to [Child’s] records with
CDTA, did the trial court err by even addressing the
proposal to Paragraph 4(g) of the March 24, 2015 custody
order of court [which] clearly grants both parties access to
ALL records regarding [Child]. Mother already having
access to the records makes the need to for it to be
address[ed] null; since [] Mother does not have and never
has had any legal or permitted access to [] Father’s
records and therefore has no place in being addressed?
3. Did the trial court err by ignoring the duty set before it to
ensure the best interest of [Child] comes before all else by
forbidding [Child] to continue receiving services with the
therapist he has grown familiar with over the period of
eighteen months?
4. In her continued abuse of discretion, general bias, and
incompetence, did the trial court err when order [] Father
to pay the $100[.00] balance to CDTA? This err/question
is two-fold;
a. [] Mother addresses the request to the [trial court]
in a matter that deems it necessary due to []
Father’s non-compliance with the custody order of
court, which is untrue.
b. The trial court’s refusal to speak to [] Father’s
response and new matter which clearly addressed
two key elements in support of his argument;
-4-
J-A16005-17
i. The trial court’s custody order, including the
same trial court’s words to both parties
after having read it aloud on March 24,
2016
ii. [] Mother’s false and misleading statements
within her original petition.
Father’s Brief at 2-3 (unnecessary capitalization omitted).
“We review an order disposing of a petition for special relief under an
abuse of discretion standard of review.” Kulp v. Kulp, 920 A.2d 867, 870
(Pa. Super. 2007). “An abuse of discretion requires proof of more than a
mere error in judgment, but rather evidence that the law was misapplied or
overridden, or that the judgment was manifestly unreasonable or based on
bias, ill will, prejudice, or partiality.” Simmons v. Simmons, 723 A.2d 221,
222 (Pa. Super. 1998).
Following our review of the certified record, the briefs for the parties,
and the relevant law, we conclude that the opinion of the Honorable Kathryn
M. Hens-Greco correctly addresses and disposes of Father’s issues and
supporting arguments. Specifically, the trial court found: (1) it did not
modify the existing custody order without a hearing, it only enforced
paragraph 4 of the parties’ agreement, which set forth that Mother and
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J-A16005-17
Father share legal custody as it pertains to the mental health of Child,2 and
furthermore, it did not amend or supplement the custody order, but merely
clarified that Mother would not oppose Father enrolling Child into family
therapy; (2) it did not err in reaffirming what the custody order already
allowed for, equal access to both parents to Child’s medical records, which
the court relayed at the motions hearing, included Child’s mental health
records; (3) it did not err in enforcing the custody order, and thus forbidding
Father from continuing to take Child to individualized therapy; (4) it did not
err in ordering Father to pay the copay incurred from Child attending
therapy; and (5) Father’s claims that the trial court is incompetent and
biased are meritless. Trial Court Opinion, 2/8/2017, at 5-10.
We agree with the trial court’s reasoning and conclusions.
Accordingly, we adopt the trial court’s February 8, 2017 opinion as our own,
and affirm the trial court’s disposition of Father’s issues on the bases of this
____________________________________________
2
In agreeing with the trial court, we reject Father’s argument that because
the custody order did not clearly state that Mother’s permission must be
obtained before enrolling the Child in therapy, the trial court’s holding that
Mother’s permission was necessary amounted to a modification of the order.
It is clear that order specified that all legal custody issues, with the
exception of a few specific issues, were to be shared. Thus, Father was on
notice that Mother must share in the decision-making as it pertains to
enrolling Child in therapy.
-6-
J-A16005-17
opinion.3 The parties shall attach a copy of the trial court’s opinion to this
memorandum in the event of further proceedings.
Lastly, we address Mother’s request for counsel fees based upon
Father’s “vexatious and frivolous behavior,” in which Mother avers that in
addition to Father’s various filings in the trial court and this Court, which are
based upon “fruitless claims,” Father has engaged in harassing behavior,
including name-calling. Mother’s Brief at 16-20.
Under Pa.R.A.P. 2744, an appellate court may award counsel
fees and other damages when it determines that “an appeal is
frivolous or taken solely for delay or that the conduct of the
participant against whom costs are to be imposed is dilatory,
obdurate or vexatious.” An appeal is “frivolous” if the appellate
court determines that the appeal lacks any basis in law or in
fact.
Lundy v. Manchel, 865 A.2d 850, 857 (Pa. Super. 2004) (some citations
omitted). “[A]n appellate court may award as further costs damages as may
be just … if it determines that an appeal is frivolous or taken solely for delay
or that the conduct of the participant against whom costs are to be imposed
is dilatory, obdurate or vexatious. The appellate court may remand the case
to the trial court to determine the amount of damages authorized by this
rule.” Pa.R.A.P. 2744.
____________________________________________
3
We recognize that the opinion at two places on page one refers to
December 2017 when it obviously meant December 2016.
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J-A16005-17
Upon review, we agree with Mother that Father’s conduct both
immediately preceding this appeal and during the appeal has been
obstreperous and vexatious. We note with displeasure that this is Father’s
tenth appeal since March 2015, and reiterate, as we have found in the past,
that “Father’s appeals are frivolous, dilatory, obdurate, and vexatious and
his abuse of the legal process is unwarranted.” J.R. v. L.T, 161 A.3d
383 (Pa. Super. 2017) (unpublished memorandum).
Accordingly, we grant Mother’s request for counsel fees and remand
this matter to the trial court for calculation of reasonable counsel fees.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2017
-8-
Circulated 08/10/2017 01:29 PM
Allegheny County - Department of Court Records
Civil Division - Filings Information
County caseID:FD-07-003697
Case Description:Thompson vs Rehak 004
Official Docket Entry, Sort By Document Number Ascending
Document Filed Date Title/Entry Entry Classification Filed By
Number
1 02/08/2017 Opinion Official Docket Entry Kathryn MHens-Greco
(Index Page-1)
... :. ,- .
1-Opinion .:
• •J
.
IN THE COURT DFCdMMbN PLEAS:.QF.ALLEGHENY COUNTY, PENNSYLVANIA
FAMILYDlVI$ION
J. R.,
Plaintiff, OPJNIQN
v. .No.:: FI)-07-003697-004'.
60WDA 2017
LT.,.
Defendant.
B·Y:
Honorable k~tbryn ;Herw-Greco·
44(J RossStreet
Suite 5077
Pittsburgh, :rA 1:;2,i:9.
COPIES TO:
PrQ S:e'_Plaintiff:
J.'.R'.,.Sr;
246: R~ptibf_i_~ Street
'J,+· Pittsburgh; PA 1521.1
Counsel for Defendant:
.4._;.
Margaret Wei Prescott, Esq,
i .,'" Women's Center &.:-Shelter of
Greater Pittsburgh
-Civil Law Project· .
P.(), 130~ 3742
Pittsburgh, PA 1523.0
. f,~:
o~
f.~;·, . _,.
IN THECOUR.TOF.COMMON PLEAS ()FALLEGHENY COUNTY, PENNSYLVANIA
FAMILY .DIVISION
J.R.,
Plaintiff, No.: FD~07~003'697-004
60 WDA'.2017
y. . I
L. T.,
Defendant.
OPINION
i-IENS-GRECO,J. February 8, 2017
In this, his· tenth appeal, Plaintiff J.R. :("Father"), "pro se, appeals this Court's Orders I of
.D~cernber'2L.2017 ,. which enforced the legal custody provisions' of the parties' Custody Order
of March 24, 2015, and specified thaJ Father does not 'have the authority to unilaterally enroll the
parties' nine-year-old son. in any individualized mental. health. therapy. The December 2017
Orders permitted, however; that F ather may enroll the child. in family therapy after Defendant
LT. (''Mather'') teptesented that she would not contest therapy ifdonein a family setting.
1·
The reason there: are two orders is because.each.party submitted a proposed order with: their respective motion. For
. housekeepingpurposes, thisCourt typically will deny .one. proposed orderirr full with· the-directiorrto "see order of
same date:'.' The Court will then use the second proposed order as the template for its ultimate decision, Here, the
Court mistakenly abandoned this good practice in thehaste of the .motionsargurnent, some of which WilJ.lJe T~Wlc!
below: · ·
In any event, ~~- i.t ~ta_n\:f~, Q!Jt! <).n:l~r '-c the 9r:<:t~r: th.it wasattached t9.:Fat!ter's pleading -1,Wgely strikes through all .of
F~ther;.s: requested feJ ief, It on.lf lea,\'.es the firs! two. paragraphs~ the second paragraph is the substantive order:
"[Father] rriay contiriue to take itie child'to receive psychoiogicai services if it JS family therapy:" The first
paragrt[ph reads: ''·'(Mothdsf Petition 1s DENIEO/ but this. sentence should also have been.stricken through as ihe
Court used.the proposed order attached to Mother's pell ii on as its template. ·
The other order -the order that was attached to Mother.'s' pet ii ion and the-one the Court.used .as its. template - also
specifies that Father may coniinue to fake 'the. child to receive-psychological services if ii is. family therapy. This
order is far more substantive as ii addresses, for example, issues ofco-pays and medical records. ·· ·
Both ofthese orders hit the docket - albeit one pi!fQi"~ and one ·aft~r (l:le D~1eiriber holjdays:» ~.nd, so both ar~ to be
observed.
l
I., RELEVAN't:FACTUAL AND PROCEDURA,iL HISTORY
The ;p' the. Superior Court.forhis right to take the .child. to 'individualized. therapy; then he
'means to carry water in a sieve'.
.I
B. Medical Records I
ln his second concise .statement,' Father does not. allege that this Court erred, per se.
Father is satisfied .to just point out that 'the· Court was superfl uous ill ordering that both parerits .
shall :ha:ye access the . child 's mental .health records. Fath et cites· to Paragraph 4(g} of the Custody
Order. to argue .th_at the Court ,et.ltecidy granted both parents access to the .child's records,
notwithstanding the fact that tberespective· parents have. their own .respective -decision-making
domains, W,hile Paragraph 4(g} specifies that both parents shall .have access to the child'«
records, the. types ofrecords specified. in Paragraph A(g) are medical, denial, orthodontic and
optical, The, Custody Order is otli'erwise silent as to access to mental health. records, And so· the
Court added 'language lo . fhe subject order .a.u.~hqdzing both parents 16 have access tQ pastand
future mental health records -, The 'Court nips:in the bud tha.t futt.i.re skirmish.
C Best Interests
In his. third concise Statement, Either alleges this Court erred. when it forbade F~Hh.er from .
.continuing.the child's individualized therapy; as 'it is inthe. child's best interest to receive such
treatment. Ironically; had this Court.granted therelief Fathermentions here, .itwould have
erroneously modified the custody order without.holding a. proper proceediii~. In his third
concise statement, Father inadvettentl.y \}dmits to, violating the Cust_ody Order for over a yeai\
~·· 136 A3d.504, ~OS :(P4·, Super. 20f6).
6
I) .. Bias· and Incompetence
.As this flna] section concerns th is Court's alleged bias and incompetence, the Court can
only cite. In re.S. H., 879 ;\.2d 802, '808. (Pa.Super. 2005) and note that a mere .adverse rul ing,
without more; does not demonstrate bias . But because Father took the trouble of fashioning a
fourth concise statement, however prolix, this Comt_ takes the time to address it,
Father's, fourth concise statement is two parts: (a) and (b), Part (b) has two .subsections :_
(g)(i) and (b)(ii} Section· (a) is indecipherable. It reads: "The Mother addresses the request to
the. Court in ,i' matter that deems it neeessarydue to the t'ather's non-compliance with the
· Custody Order of Court, which is untrue."
Fa ther' s, statement: 4_(a) should be deemed waived, "When the trial court has to guess
what issuesan ~p_pellant is appealing, that is hot enough tqr, a.meaningful review.]. .. ]in other·
words.aconcise statement which. i's too vague to allow the courtto identify the .issues raised on.
appeal is the. functional equivalent of no concise, statement at.all," Commonwealth: I!, Dowling,
778 A.2d,683, :686 (Pa. Super, 200J}. See also CW. v. ND. 200 W:L 11173054 :(Pa. Super.
.2013) (Non-precedennal decision demonstrates the applicability bf Dowling to family 'law cases.)
This Court cannot .meamngfully address what it cannot understand,
Likewise, the, Court CId., at 6~7, Despite repeated warnings. Id., at 8:;8,. l'3
III. CONCLUSION,
'In prohibiting, F atherfrorn scheduling future individual ized rherapy' appointments, this Court.
merely enforced - as opposed to modified - the 'legal custody provision ofthe. par:tie( Custody
Order . .As Father's ,violation ofthe order caused Mother to incur ,all 00 copa)', this Court.
properly ordered.Father to reimburse Mother. It was not. superfluous of this Court to order that
the child's mental 'health records shall also be .aecessible by both parties, .In fashioning the
orders of DecemberZ'l , 20 i:6, the Court did not .display bias. Its orders should be affirmed,
I •
BY THECQ{JRI:
IO