J-A11023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.B. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
L.Z.
No. 1983 MDA 2016
Appeal from the Order Entered November 9, 2016 In the Court of Common Pleas of Cumberland County Civil Division at No(s): 2014-2344
BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED JULY 10, 2017
B.B. (“Father”) appeals from the November 9, 2016 order entered in
the Cumberland County Court of Common Pleas setting forth the amended
Parenting Plan for M.T.B. (“Child”). We affirm.
The trial court summarized the relevant history of this matter as
follows:
This is a custody action between Plaintiff Father [B.B.] and Defendant Mother [L.Z.] that concerns their only daughter, a child who is now eight (8) years old. The action began in December 2009 when Father filed a custody complaint in York County and the matter was generally handled in that county until transferred in April 2014 to Cumberland County. The issue on appeal began in March 2016 by way of a custody modification that resulted in a Parenting Plan and Assessment being filed on August 2, 2016. ____________________________________________
* Former Justice specially assigned to the Superior Court. J-A11023-17
Father filed a Petition for Emergency Relief in the latter part of August 2016 that was denied on August 29, 2016, as the Parenting Plan specifically provided options to address the circumstances denominated in the Petition as an emergency. On September 9, 2016, the court sua sponte reconsidered the Parenting Plan upon receipt of the chemical tests results that permitted review of the Parenting Plan by its terms. A further trial was scheduled to include the medical testimony on Mother’s chronic health issues that were not provided during the course of the initial trial and information on school relocation. A trial was scheduled for November with a late October pretrial conference. Mother filed a Motion for Reconsideration of the September 9, 2016 Modification of the Parenting Plan based on the chemical tests results, which the court denied on September 20, 2016. Mother filed an appeal to the Superior Court that was discontinued on October 20, 2016. The trial based on manifest necessity for the lack of coverage of the prescribed factors was held and an amended Parenting Plan entered on November 9, 2016. Father has now appealed that decision and filed a twelve (12) page concise statement of matters complained on appeal, which this opinion will attempt to succinctly address.
1925(a) Opinion, 1/9/17, at 1-2 (“1925(a) Op.”).
Father raises the following 21 issues1 on appeal:
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1 We note that Father’s brief does not comply with the dictates of Pennsylvania Rule of Appellate Procedure 2116(a), which requires that the statement of question involved “state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail.” Indeed,
[t]he approach to appellate advocacy embarked on by present counsel for [Father] brings to mind the words of the Honorable Ruggero J. Aldisert of the United States Court of Appeals for the Third Circuit:
With a decade and a half of federal appellate court experience behind me, I can say that (Footnote Continued Next Page)
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AUGUST 2, 2016 ORDER
(A) Did the lower court err in limiting the amount of time that each side had to present their fact witnesses (including the parties) to seventy-five (75) minutes, thereby depriving Father the right to cross examine Mother’s fact witnesses on whom the Judge relied in fashioning the award of custody?
(B) Did the lower court err in reaching a decision contrary to the weight of evidence, including the lower court’s own “factual findings” as listed in its August 2, 2016 Order?
(C) Did the trial court fail to properly analyze all of the custody and relocation factors (if applicable), instead, offering “findings of fact” under each factor but no discussion or insight into how or why the court issued the Order it did?
(D) Did the trial court err in considering the relocation factors when Father was not moving a “significantly distant location” from Mother, nor would such move inhibit either party’s custodial rights? _______________________ (Footnote Continued)
even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them . . . [and] it is [this] presumption . . . that reduces the effectiveness of appellate advocacy.
Aldisert, “The Appellate Bar: Professional Competence and Professional Responsibility–A View From the Jaundiced Eye of the Appellate Judge,” 11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in original).
Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (some alterations in original). Although the Rules of Appellate Procedure allow this Court to quash or dismiss an appeal if the defects in the brief are substantial, see Pa.R.A.P. 2101, we will decline to find waiver on this basis given the sensitive nature of this child custody matter.
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(E) Did the lower court err in reaching a decision exactly opposite of the recommendations of Kasey Shienvold, Psy.D., despite the custody evaluator’s uncontroverted testimony and recommendations regarding this child with ADHD who needed more structure and stability which Father could provide, without giving any rationale or reasoning for [its] decision?
(F) Did the lower court err by failing to consider the domestic violence between Mother and her boyfriend as testified to by Father and the custody evaluator and as reported to Father and the custody evaluator by the Child?
(G) Did the lower court err by failing to consider Father’s testimony concerning Mother’s abuse of prescription drugs, as well as the Report and testimony of the custody evaluator that the child had reported to him that Mother and her boyfriend had physical altercations about “pills and money”?
AUGUST 29, 2016 ORDER
(H) Did the lower court err in failing to consider the concerns about drugs within Mother’s household as subsequently proven by the arrest of Colin Foltz (Mother’s boyfriend) for possession of “2 hypodermic needles, metal spoon, small rubber bands, empty box of suboxone” (R. 536a) on July 15, 2016, a mere 9 days after the conclusion of the July 6th trial date (at which trial Mother and her boyfriend had both testified that there were no issues with “money and pills”) (R.335a) and before the lower court entered its August 2, 2016 Order even though the matter was once again brought to the court’s attention?
(I) Did the lower court err by waiting until August 29, 20162 to enter an Order and in so doing, failing to consider the child's best interests and safety when it finally issued the Order to address the Emergency Petition filed by Father on Wednesday, August 24, 2016 at 12:19 p.m. which was filed by Father immediately after discovering (merely by happenstance and not by Mother advising him of this information) Mother’s boyfriend’s arrest? 2 Five (5) days after the Emergency Petition was filed which consisted of three (3) business days.
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(J) Did the lower court err in failing to consider the child’s best interests and safety when it failed to hold a hearing to address Father’s August 24, 2016 Emergency Petition and summarily denied all of Father’s requested relief therein?
(K) Did the lower court err in failing to hold a hearing after the filing of Father’s August 24, 2016 Emergency Petition when the veracity of the testimony provided by Mother and her boyfriend at the July 6, 2016 Hearing was clearly now questionable, at best, and the lower court was in the best position to make the credibility determination?
NOVEMBER 9, 2016 ORDER
(L) Did the lower court err in limiting the time that each side had to present their case to seventy (70) minutes for each side such that Father did not have the opportunity to call any of his fact witnesses, nor to recall Father to address issues raised by Mother, nor to call rebuttal witnesses to address allegations made by Mother?
(M) Did the lower court err in reaching a decision contrary to the evidence and testimony presented, specifically including the testimony and November 5, 2016 letter/report of Father’s expert, Ted D. Kosenske, M.D.?
(N) Did the lower court err in reaching a decision contrary to the evidence and testimony presented, specifically including the testimony of Mother’s expert, Jeffrey P. Sarsfield, M.D.?
(O) Did the trial court fail [to] properly analyze all of the custody and relocation factors (if applicable), instead, offering what appear to be “findings of fact” under each factor but no discussion or insight into how or why the court issued the Order it did, and did the court fail to update its “analysis” in certain factors that should have been updated from the August 2, 2016 Hearing?
(P) Did the trial court err in considering the relocation factors when Father was not moving a “significantly distant location” from Mother, in fact, Father had already moved, nor would such move inhibit either party’s custodial rights and therefore, the question was merely a question of legal custody - should child change schools?
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(Q) Did the lower court err in failing to consider the experts’ opinions and factual testimony regarding Mother’s overuse of her prescription medication and the potential adverse safety ramifications when fashioning an Order which does not address the child’s best interests in this situation or address safeguards for the child when she is in the care and custody of Mother when the safety of the child is to be a factor that is to be weighted in consideration?
(R) Did the lower court err in failing to consider the reports and opinions of the child’s teacher, guidance counselor and principal, all of whom testified to a marked positive difference in the child since she had been in Father’s sole custody (with only periods of supervised custody to Mother)?
(S) Did the lower court err by “punishing” Father for abiding by and following the Court’s Order of Supervised Custody and by trying to protect child from Mother’s overuse of prescription medication and ensuring that the child was properly supervised during Mother’s periods of custody and during calls with Mother so that Mother could not continue to tell child it was all Father’s fault that child could not see Mother?
(T) Did the lower court err by failing to consider the domestic violence between Mother and her boyfriend as testified to by Father and the custody evaluator and as reported to Father and the custody evaluator by the Child despite the fact that this is to be a weighted factor?
(U) Did the lower court err by failing to consider the testimony of Father, Dr. Sarsfield, Dr. Kosenske, and Dr. Shienvold (as reported by the child) concerning Mother’s use/abuse of prescription drugs when same is not only a factor under the custody statute, but also one which is to be weighted in consideration?
Father’s Br. at 44-51 (suggested answers omitted).
As a preliminary matter, we conclude that Father’s issues arising from
the trial court’s August 2, 2016 and August 29, 2016 orders, with the
exception of Father’s challenge to the time limitation for presentation of
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witnesses imposed by the trial court, are moot. The November 9, 2016
order rendered the August 2, 2016 order inoperative because the parenting
plan in the November 9 order superseded the parenting plan in the August 2
order. The August 29, 2016 order denied Father’s petition for emergency
relief. On September 9, 2016, however, the trial court, sua sponte, treated
the petition as a motion for reconsideration of the August 2, 2016 order and
granted Father relief.2
2 Father’s petition for emergency relief requested:
1) that the parties shall continue to share legal custody of [Child]; 2) Father be granted primary physical custody of [Child] pending further Order of Court; 3) that Mother be granted periods of supervised custody; 4) that Mother and [Mother’s boyfriend] undergo a full-panel hair follicle drug screen within forty-eight (48) hours of the issuance of this Order to be paid at Mother’s expense and that the results of said drug screen be released directly to the undersigned; 5) that [Child] have NO CONTACT with Mother’s boyfriend, . . . 6) at no time shall Mother’s periods of supervised custody occur at the home of Mother’s boyfriend; 7) that Mother be ordered to undergo and cooperate in co-parenting counseling with Heather Jay -Boardman or with Dennis Graybill and that all costs of said co-parenting counseling not covered by insurance be borne equally by the parties; 8) that Mother be ordered to cooperate in putting [Child] in counseling with Shanen Turk-Gellar at New Passages and that any costs of [Child]’s counseling not covered by insurance be borne equally by the parties; 9) that a Hearing be scheduled to address a permanent change of the custodial schedule based upon [Child]’s best interests in light of this new information; and 10) that Father be awarded attorneys’ fees, costs and expenses for Mother’s obdurate and vexatious behavior and failure to act in good faith and (Footnote Continued Next Page)
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In Father’s numerous issues, he challenges the trial court’s rulings and
findings on four separate bases: 1) the trial court erred in limiting the
parties’ time to present witness; 2) the trial court erred in considering the
relocation factors, when those factors were irrelevant; 3) the trial court
erred in its analysis of the custody and relocation factors; and 4) the trial
court erred in failing to consider and credit the evidence presented by
Father.
“Our concern in any custody or relocation matter is the best interest of
the child, which considers all factors, on a case-by-case basis, that
legitimately affect a child’s physical, intellectual, moral, and spiritual well-
being.” S.J.S. v. M.J.S., 76 A.3d 541, 554 (Pa.Super. 2013). In custody
cases, 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 _______________________ (Footnote Continued)
consistent with the best interests of the parties’ minor child.
Pet. for Emer. Rel., 8/24/16, at 8-9 (unpaginated). The September 9, 2016 order modified the August 2, 2016 parenting plan as follows: 1) Child was to live with Father full-time, with Mother having supervised custody; 2) Child was to remain at her school with Father responsible for school transportation; 3) the rest of the August 2, 2016 parenting plan remained in effect. The order scheduled a hearing to address what the trial court termed “deficit[s] in the testimony of Mother’s current health status.” Order, 9/9/16, at 2. The trial court scheduled the hearing for November 9, 2016.
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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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (quoting A.D. v.
M.A.B., 989 A.2d 32, 35-36 (Pa.Super. 2010)) (internal citations omitted).
This Court has also stated that “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.” Ketterer v. Seifert, 902 A.2d 533, 540
(Pa.Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254
(Pa.Super. 2004)). “[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.” Id. (quoting Jackson, 858 A.2d at
1254).
“An abuse of discretion is not merely an error of judgment.”
Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super. 2007) (quoting
Arbet v. Arbet, 863 A.2d 34, 39 (Pa.Super. 2004)). A trial court abuses its
discretion when it “overrides or misapplies the law, or exercises judgment
which is manifestly unreasonable, or the result of partiality, prejudice, bias
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or ill will.” ABG Promotions v. Parkway Publ’g, Inc., 834 A.2d 613, 616
(Pa.Super. 2013) (en banc).
Section 5328(a) of the Child Custody Act delineates the factors that a
trial court must consider when awarding any form of custody.3 Section
3 The factors to be considered when determining an award of custody are:
(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.
(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 (Footnote Continued Next Page)
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5337(h) delineates 10 factors that a trial court must consider in determining
whether to grant a proposed relocation.4
_______________________ (Footnote Continued)
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). 4 The factors to be considered in determining whether to grant a proposed relocation are as follows:
(1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to (Footnote Continued Next Page)
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relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
23 Pa.C.S. § 5337(h).
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The trial court explained that it had exercised its broad discretion to
limit the parties’ time to present testimony. 1925(a) Op. at 7. It also
concluded that it was required to evaluate the relocation factors, because
Father’s request for primary custody would include a new school district and
school for Child. Id. at 5. The trial court reviewed the evidence and
testimony presented and considered all of the custody and relocation factors,
see Order, 11/9/16, at 9-16, and found that the custody schedule in the
November 9, 2016 order was in Child’s best interests. Id. at 17.
At the conclusion of its opinion, the trial court explained:
Mother and Father have considerable room to grow as parents. Neither would be considered a model parent, nor is the custody action a test of who is the better parent. Indeed, this case exemplifies the problems with this system of custody determination. The parties come into court, lob verbal grenades at one another and the family, and then the law expects a court to put the family back together again. The court does not err in focusing in on the positives within the child’s life and promoting those positives. In this case, one of the positives is the child’s school; one that she has been a part of for years, the one that provides her with stability, continuity and development. Father was awarded a shared percentage of custody as per his modification request; with the ability to modify the cycle of custody as the child needs, which could include his specifically requested 3/2/2/3 cycle, if Father and Mother can grow. Father’s complaint that [he] is not named primary custodian falls on deaf ears, as he has not shown he is ready or capable for that responsibility, nor that a change in schools is in the best interests of their child.
1925(a) Op. at 7-8 (footnote omitted). After reviewing the parties’ briefs,
the certified record, and the relevant law, we conclude the trial court did not
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abuse its discretion. We agree with and adopt the well-reasoned opinion of
the Honorable Thomas A. Placey. See id. at 3-8.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/10/2017
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