Mann, V. v. Grate, R. ( 2023 )

J-S16001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
RICHARD C. GRATE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VENITA D. MANN :
:
Appellant : No. 4 EDA 2023
Appeal from the Order Entered December 1, 2022
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): 0C1302259
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 31, 2023
Venita D. Mann (“Mother”) appeals pro se from the December 1, 2022
order which denied Mother’s petitions for modification of custody, awarded
Richard C. Grate (“Father”) sole legal and primary physical custody, and
awarded Mother partial physical custody of the parties’ then-14-year-old child,
D.M.X. (“Child”). Upon review, we conclude that the trial court properly
considered the 23 Pa.C.S. § 5328(a) custody factors and find Mother’s
remaining issues to be waived because Mother failed to preserve them for our
review. Accordingly, we affirm.
A detailed recitation of the factual and procedural history in this case is
unnecessary to our disposition. Briefly, Mother and Father have been involved
in highly contentious custody litigation since January 2013. Father has had
primary physical custody of Child since September of 2018. On March 19,
2019, the trial court awarded the parties shared legal custody and Mother
J-S16001-23
partial physical custody of Child on alternating weekends. After the March 19,
2019 custody order, both parties filed numerous petitions to modify custody
and for contempt.1 Most recently, on December 1, 2022, following a hearing,
the trial court considered and analyzed the Section 5328 custody factors on
the record and awarded Father sole legal custody and primary physical
custody of Child. The court awarded Mother primary physical custody of Child
every Sunday from 10:00 AM to 7:00 PM and one overnight per month.
Mother filed a timely pro se appeal and contemporaneous Pa.R.A.P.
1925(b) statement. In response, the trial court filed a Rule 1925(a) opinion.
Mother raises the following issues for our review:
1. Whether the trial court showed personal bias and committed
an error of law when the [c]ourt would not allow [Mother]
to discuss educational issues brought up by [Father]?
2. Whether the trial court erred in omitting several records and
videos regarding the occurrence of sexual abuse in
[Father]’s home?
3. Whether the trial court violated [Mother]’s constitutional
right to due process of law?
4. Whether the trial court erred as matter of law by permitting
[Father]’s witness to testify regarding sexual abuse
allegations without being certified as an expert while
omitting medical records from a psychological evaluator that
were vital to the case and refusing to allow witnesses
subpoenaed by [Mother]?
____________________________________________
1 Specifically, Father filed one petition for contempt and one petition to modify
custody. Mother filed approximately 13 petitions for contempt and 3 petitions
to modify custody.
-2-
J-S16001-23
5. Whether the trial court erred in failing to grant a petition for
recusal based on showing of prejudice, improper demeanor,
and bias towards Appellant?
6. Whether the trial court erred in failing to address [Mother]’s
contempt petitions filed throughout the pendency of the
modification hearings?
7. Whether the trial court erred in failing to consider all the
factors under 23 Pa.C.S. § 5328 as to what is in [] Child’s
best interests?
Mother’s Br. at 9.
A.
This court reviews a custody determination for an abuse of discretion,
and our scope of review is broad. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.
Super. 2014). This court will not find an abuse of discretion “merely because
a reviewing court would have reached a different conclusion.” In re K.D.,
144 A.3d 145, 151 (Pa. Super. 2016). This Court must accept the findings of
the trial court that the evidence supports. S.W.D., 96 A.3d at 400.
Importantly, “[o]n issues of credibility and weight of the evidence, we defer
to the findings of the trial judge who has had the opportunity to observe the
proceedings and demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136,
1159 (Pa. Super. 2015) (citation omitted). We can interfere only where the
“custody order is manifestly unreasonable as shown by the evidence of
record.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation
omitted). Further, in a custody case, relief is not warranted unless the party
claiming error suffered prejudice from the mistake. J.C. v. K.C., 179 A.3d
1124, 1130 (Pa. Super. 2018).
-3-
J-S16001-23
The Custody Act requires a trial court to consider all the Section 5328(a)
custody factors when “ordering any form of custody,” and directs the court to
give “weighted consideration to those factors which affect the safety of the
child[.]” 23 Pa.C.S. § 5328(a). A trial court must “delineate the reasons for
its decision when making an award of custody either on the record or in a
written opinion.” S.W.D., 96 A.3d at 401. See also 23 Pa.C.S. § 5323(a)
and (d). However, “there is no required amount of detail for the trial court’s
explanation; all that is required is that the enumerated factors are considered
and that the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013).
When reviewing child custody matters, our “paramount concern and the
polestar of our analysis” is the best interests of the child. Saintz, 902 A.2d
at 512 (citation omitted). “The best-interests standard, decided on a case-
by-case basis, considers all factors which legitimately have an effect upon the
child’s physical, intellectual, moral, and spiritual well-being.” D.K.D. v.
A.L.C., 141 A.3d 566, 572 (Pa. Super. 2016) (citations omitted). “Common
sense dictates that trial courts should strive, all other things being equal, to
assure that a child maintains a healthy relationship with both of his or her
parents, and that the parents work together to raise their child.” S.C.B. v.
J.S.B., 218 A.3d 905, 916 (Pa. Super. 2019). Finally, in any action regarding
the custody of the child between the parents of the child, there shall be no
presumption that custody should be awarded to a particular parent and no
preference based upon gender. 23 Pa.C.S. §§ 5327(a) and 5328(b).
-4-
J-S16001-23
B.
As an initial matter, we must address whether Mother preserved several
of her issues for our review. We review Mother’s issues mindful of the fact
that Mother filed a pro se Rule 1925(b) statement as well as a pro se brief.
Nevertheless, “[a]lthough this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no special benefit
upon an appellant.” Commonweath v. Lyons, 833 A.2d 245, 251–52 (Pa.
Super. 2003). As discussed infra, we conclude that Mother’s first six issues
are waived because she either failed to include them in her Rule 1925(b)
statement, failed to identify them with specificity, or failed to substantially
develop arguments to support them.
It is axiomatic that the Rule 1925(b) Statement “shall set forth only
those errors that the appellant intends to assert” and “concisely identify each
error that the appellant intends to assert with sufficient detail to identify the
issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(i), (ii). “Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.” Id. at 1925(b)(4)(vii). Further, “[a]n
overly vague or broad Rule 1925 statement may result in waiver.” Majorsky
v. Douglas, 58 A.3d 1250, 1258 (Pa. Super. 2012). “The Rule 1925(b)
statement must be detailed enough so that the judge can write a Rule 1925(a)
opinion[.]” Commonwealth v. Reeves, 907 A.2d 1, 3 (Pa. Super. 2006).
“When a court has to guess what issues an appellant is appealing, that is not
enough for meaningful review. When an appellant fails adequately to identify
-5-
J-S16001-23
in a concise manner the issues sought to be pursued on appeal, the trial court
is impeded in its preparation of a legal analysis which is pertinent to those
issues.” Satiro v. Maninno, 237 A.3d 1145, 1150 (Pa. Super. 2020) (citation
omitted). “In other words, a Concise Statement which is too vague to allow
the court to identify the issues raised on appeal is the functional equivalent of
no Concise Statement at all.” Id. (citation omitted).
In her first issue, Mother avers that the trial court abused its discretion
when it would not let her discuss educational issues raised by Father. Mother’s
Br. at 9. Mother failed to include this issue in her Rule 1925(b) Statement.
We, therefore, find the issue waived.2
In her second and third issues, Mother avers that the trial court erred in
precluding several records and videos regarding sex abuse that occurred in
Father’s home after 2017 and that the trial court violated her due process
rights. The trial court found both issues to be “too vague to be considered on
appeal.” Trial Ct. Op., 1/26/23, at 13-14. Upon review, we agree.
As the trial court points out, “Mother fails to identify the records and the
videos that she alleges were wrongfully omitted from the record.” Id. at 13.
Likewise, “Mother fails to identify any instances in which the court acted in
violation of her right to due process of law.” Id. at 14. Because these issues
____________________________________________
2 In her brief, Mother includes argument that the trial court failed to permit
her the opportunity to obtain counsel without providing citation to the record
concerning when this alleged denial occurred. Mother’s Br. at 54. Mother,
likewise, failed to include this issue in her Rule 1925(b) statement, or her
statement of questions. Accordingly, this issue is waived.
-6-
J-S16001-23
are too vague to allow the trial court to identify the issues raised on appeal,
we conclude they are waived.
In her fourth issue, Mother avers that the trial court erred when it
“permit[ed] [Father]’s witness to testify regarding sexual abuse allegations
without being certified as an expert while omitting medical records from a
psychological evaluator that were vital to the case and refusing to allow
witnesses subpoenaed by [Mother]?” Mother’s Br. at 9. However, in her Rule
1925(b) Statement, Mother raised the issue as follows: “The court erred when
treating the witness as an expert and omitting medical records and appellant’s
witnesses.” Rule 1925(b) Statement, 12/28/22, at ¶ 7. The trial court found
this issue “too vague to be considered on appeal” because “Mother fails to
identify which experts, medical records, and witnesses she alleges that the
court failed to consider.” Trial Ct. Op. at 20. We agree and, likewise, find this
issue waived for vagueness.
In her fifth and sixth issues, Mother avers that the court erred when it
denied her petitions for recusal and failed to address her contempt petitions.
Mother’s Br. at 37. Mother’s argument in support of these issues is
substantially undeveloped. She merely provides the dates of the petitions and
fails to cite any relevant legal authority to support her argument as required
by Pa.R.A.P. 2119 (explaining that each issue is to be supported by discussion
and citation of relevant authority). This Court “will not act as counsel and will
not develop arguments on behalf of an appellant. Moreover, when defects in
a brief impede our ability to conduct meaningful appellate review, we may
-7-
J-S16001-23
dismiss the appeal entirely or find certain issues to be waived.” In re R.D.,
44 A.3d 657, 674 (Pa. Super. 2012) (citation omitted). Mother’s failure to
develop these issues severely hampers our ability to provide meaningful
appellate review and we are constrained to find both issues waived.
C.
In her final issue, Mother avers that the trial court failed to consider all
the Section 5328(a) custody factors. Once again, the trial court found this
issue “too vague to be considered on appeal” because “Mother fails to identify
which of the Section 5328 factors she alleges that the court failed to
consider.” Trial Ct. Op. at 19 (emphasis added). Nevertheless, the trial court
generally addressed the issue on the merits and explained, inter alia, “the
court considered and addressed all of the Section 5328 factors in open court
at the hearing on December 1, 2022.” Id.We agree that Mother failed to identify the specific custody factors that
she was challenging, and, therefore, has waived any arguments concerning
specific factors. Accordingly, we decline to address Mother’s arguments
regarding specific custody factors.
However, we will address Mother’s general claim that the trial court
failed to consider all the Section 5328 custody factors. Our review of the
record belies this challenge and confirms that the trial court did, indeed,
address all of the custody factors on the record at the end of the December 1,
2022 hearing. See N.T., 12/1/22, at 108-111.
-8-
J-S16001-23
Based upon its consideration of all the custody factors, the trial court
found that awarding primary physical custody to Father was in Child’s best
interest. The trial court emphasized Child’s “need for stability and continuity
in his education and his community life and his strong expressed preference
during his interview with the Court on December 1, 2022, to remain living with
Father.” Trial Ct. Op. at 20. The trial court further opined:
[Child] is now 14 years old and has been living with his Father in
suburban New Jersey at least since the entry of an interim order
of court on September 12, 2018. He engages in many organized
sporting activities, particularly basketball. He enjoys frequent
interaction with teammates and social activities with his friends.
His preference to live with Father and to see Mother on weekend
days at such times that do not conflict with his athletic event was
given substantial weight.
Id. Our review of the record supports the trial court’s findings. We decline
to reweigh the evidence or usurp credibility determinations. Based on our
review, we conclude the trial court properly exercised its discretion in
rendering its custody determination.
D.
In conclusion, the trial court properly considered the Section 5328(a)
custody factors when it awarded primary physical custody of Child to Father.
Mother waived her remaining issues when she failed to include them in her
Rule 1925(b) statement, failed to identify them with specificity, or failed to
substantially develop arguments to support them. We, thus, affirm.
Order affirmed.
-9-
J-S16001-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2023
- 10 -