A.J.B. v. M.P.B.

945 A.2d 744
Superior Court of Pennsylvania·Decided March 12, 2008·Published·Cited by 22 cases

Opinion

OPINION BY

BENDER, J.:

¶ 1 A.J.B. (Father) appeals from the order dated December 18, 2006, and entered on December 19, 2006, wherein the trial court denied his petition to modify an existing custody order. We affirm.

¶ 2 Father married M.P.B. (Mother) on July 31, 1999. The marriage produced a [746] daughter, G.P.B., born October 16, 2000. The marriage dissolved in 2002, and a divorce decree was entered on November 17, 2003. On November 16, 2004, the trial court entered an order awarding Mother primary physical custody of G.P.B. and granting Father periods of partial custody twice a week from 5:30 p.m. to 8:30 p.m. Father was also granted brief periods of physical custody during certain holidays, as long as it did not interfere with Mother’s family gatherings. Father did not appeal the custody order. Instead, on February 4, 2005, Father filed a petition to modify the November 16, 2004 order. Mother countered with a petition for special relief, wherein she requested that the trial court direct Father to exercise his periods of physical custody in a public place. The genesis of this request was Mother’s belief that Father regularly falls asleep during his time with G.P.B., leaving her without supervision. On May 11, 2005, the trial court granted Mother’s petition for special relief, and it directed Father to conduct his periods of custody in a public place, which it subsequently defined as “a place where others will be present at all times.” See Trial Court Order and Opinion (T.C.O.), 6/15/06.

¶ 3 Thereafter, following a contentious discovery period, an exchange of petitions for contempt, the appointment of a guardian ad litem, custody evaluations, a motion in limine, voir dire to determine the qualifications of Mother’s proposed expert witness, and an evidentiary hearing, on December 19, 2006, the trial court entered an order denying Father’s petition to modify the custody order. This timely appeal followed on December 29, 2006. On May 22, 2007, the trial court directed Father to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b). On June 1, 2007, Father filed a Rule 1925(b) statement presenting three claims, which he reiterates on appeal as follows:

1. Did the [trial] court err in accepting the testimony of Ms. Reisman, a Ph.D. in Media Sciences, who had never seen either party, was not a psychologist and had never received any training in that field?
2. Did the [trial] court abuse it’s [sic] discretion by blatantly disregarding findings of the independent psychologist and the father’s psychiatrist when no evidence was offered to contradict either expert?
3. Did the [trial] court abuse it’s [sic] discretion in finding that the father’s conduct violated his prior order by not providing up to the minute information on where the father was with the child and finding that the father taking the child to local parks did not constitute public places as ordered by the court?

Fathers’ brief at 4.

¶ 4 We begin by stating our standard of review.

[W]e note that on questions relating to an order of custody or visitation, our scope and standard of review are broad:
the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

[747] Helsel v. Puricelli, 927 A.2d 252, 254-55 (Pa.Super.2007) (quoting Liebner v. Simcox, 834 A.2d 606, 609 (Pa.Super.2003)). Moreover, the paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being and is to be made on a case-by-case basis. Wheeler v. Mazur, 793 A.2d 929, 933 (Pa.Super.2002). “Finally, we note that ‘[o]n issues of credibility and weight of the evidence, appellate courts must defer to the findings of the trial judge who has had the opportunity to observe the proceedings and the demeanor of the witnesses.’ ” Dranko v. Dranko, 824 A.2d 1215, 1219 (Pa.Super.2003).

¶ 5 The central issue in this case concerns Mother’s objection to Father’s pervasive use of pornography, which the parties concede precipitated the demise of their marriage. Father admits to viewing pornography several times every day, and Mother has consistently and vociferously alleged that Father is addicted to pornography. However, in a prior proceeding, the trial court reviewed a battery of psy-chosexual exams administered by Dr. William G. Alenbrough, II, a psychologist employed by Centre County to perform Megan’s Law evaluations, and the court determined Father was not addicted to pornography. Likewise, all three of the psychologists who evaluated Father for the purpose of the underlying custody matter concluded that Father’s use of pornography was not a threat to G.P.B.’s physical safety. Simply stated, the experts did not believe Father would sexually abuse a child.

¶ 6 Nevertheless, Father’s fixation with pornography remains Mother’s paramount concern as it relates to Father’s relationship with G.P.B. Indeed, in challenging Father’s petition to modify the existing custody order, Mother sought to present an expert witness, Dr. Judith A. Reisman, Ph.D., to testify about pornography, “brain science,” and the probability of harm to G.P.B. if the court awarded Father extended, overnight visitation. N.T., 9/6/06, at 28; N.T., 8/22/06, 89-90. Father objected to Dr. Reisman’s proposed testimony and filed a motion in limine to exclude it from the custody healing because (1) Dr. Reis-man was not qualified as either a psychologist or psychiatrist and (2) Dr. Reisman’s scientific evidence was not generally accepted in the relevant scientific community under Frye v. U.S., 293 F. 1013 (D.C.Cir.1923), and Grady v. Frito-Lay, 576 Pa. 546, 839 A.2d 1038, 1044 (2003).

¶ 7 During the subsequent voir dire, Mother indicated that she was presenting Dr. Reisman as an expert in mass media, erotic media, academic human sexuality, programmatic training and the causes and prevention of child abuse. N.T., 9/6/06, at 9. As to her specific qualifications, Dr. Reisman testified that she had a doctoral degree in mass media communications and systems analysis, which she defined as follows:

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A.J.B. v. M.P.B., 945 A.2d 744 (Pa. Ct. App. 2008).

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