Cocco, J. v. Palmieri, R.

• Court: Superior Court of Pennsylvania
• Decided: May 29, 2026
• Docket: 2429 EDA 2025
• Status: Unpublished
• Author: Stevens

Opinion

J-A08029-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JACLYN COCCO : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROSARIO PALMIERI, JR. : : Appellant : No. 2429 EDA 2025

Appeal from the Order Entered August 29, 2025 In the Court of Common Pleas of Delaware County Civil Division at No(s): CV-2018-004825

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and STEVENS, P.J.E. *

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 29, 2026

Appellant, Rosario Palmieri, Jr. (“Father”) appeals from the Final

Custody Order dated August 28, 2025, entered August 29, 2025, by the

Delaware County Court of Common Pleas granting primary physical custody

of the parties’ three minor children to Appellee, Jaclyn Cocco (“Mother”), and

partial physical custody to Father. After careful review, we affirm.

By way of background, Father and Mother have three minor children

together, the oldest child having been born in February of 2014 and the

youngest in April of 2017. Findings of Fact in Support of Custody Order Dated

8/28/2025 (hereinafter “Findings of Fact”) at page 1. On June 21, 2018,

Mother filed for custody of all three children. Id. At that time, Mother resided

in Pennsylvania while Father had moved to New Jersey. Id. On or around

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A08029-26

September 12, 2018, the Honorable William C. Mackrides of the Court of

Common Pleas of Delaware County determined the home state of the children

to be Pennsylvania, and several months thereafter entered a Temporary

Custody Order awarding joint legal custody, primary physical custody to

Mother, and partial physical custody to Father. Id. at 1-2

Relevant to the instant appeal, this custody matter was reassigned in or

about May of 2025 to the Honorable Judge Rachel Ezzell Berry, also of the

Court of Common Pleas of Delaware County, and the matter proceeded to a

custody trial before Her Honor on August 21, 2025. Trial Court Opinion

10/16/2025 at 1. By that time, the trial court noted, the docket was rife with

“many Petitions for Contempt, Petitions for Special Relief, and other petitions

(name changes, reunification, sanctions, and more) filed between the parties,”

demonstrating the high degree of conflict. Trial Court Opinion 10/16/2025 at

1. Following trial, Judge Berry entered the custody order dated August 28,

2025, which reduced father’s, custodial time. It is from this order which Father

now appeals.

We are presented with the following issues for review:

I. WHETHER THE COURT ABUSED ITS DISCRETION BY RENDERING AN ORDER UNREASONABLE IN LIGHT OF ITS FACTUAL FINDINGS CONTRARY TO THE BEST INTERESTS FACTORS

II. WHETHER IT WAS AN ABUSE OF DISCRETION TO RELY UPON TO [sic] PERSONAL EXPERIENCES IN RENDERING THE 8/28/25 ORDER.

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III. WHETHER THE COURT ABUSED ITS DISCRETION BY ISSUING AN ORDER WHICH FAILS TO CONSIDER COURT- APPOINTED EVALUATOR’S TESTIMONY AND REPORTS.

IV. WHETHER THE FAILURE TO HEAR PETITIONS IN A TIMELY MANNER RESULTED IN A VIOLATION OF DUE PROCESS.

V. WHETHER THE COURT COMMITTED REVERSIBLE ERROR AND ABUSED DISCRETION IN RENDERING ITS FINAL ORDER DESPITE THE EXTENSIVE RECORD BEFORE IT.

Appellant’s Brief at 26.

As father’s first and fifth issues are functionally identical, we will address

them as one.

We review custody orders for an abuse of discretion. We will not find such an abuse merely because we would have reached a different conclusion. Rather, an abuse of discretion occurs only if the trial court overrode or misapplied the law in reaching its conclusion, or the record shows the trial court's judgment was manifestly unreasonable or the product of partiality, prejudice, bias, or ill will.

Moreover, our scope of review is broad. Because this Court does not make independent factual determinations, however, we must accept findings of the trial court that are supported by competent evidence of record. Importantly, we defer to the trial court on matters of credibility and weight of the evidence, as the trial court viewed and assessed witnesses firsthand. We are not, however, bound by the trial court's deductions or inferences. 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. As this Court has held, it is not this Court's function to determine whether the trial court reached the 'right' decision; rather, we must consider whether, based on the evidence presented, given due deference to the trial court's weight and credibility determinations, the trial court erred or abused its discretion.

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When a trial court orders a form of custody, the best interest of the child is paramount. 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. To that end, the Child Custody Act sets forth sixteen factors that a court must consider before making any custody determination. It is within the trial court's purview as the finder of fact to determine which factors are most salient and critical in each particular case.

Taylor v. Smith , 302 A.3d 203, 206-207 (Pa. Super. 2023)(internal citations

omitted, emphasis added).

The core contention in Father’s first and fifth issues is that the trial court

ought to have afforded more weight to the custody factors which favored

Father than was afforded to those which favored Mother. Of particular note,

Father takes issue with the lower court’s order increasing Mother’s custodial

time despite the court finding that mother has engaged in acts of alienation

including, inter alia, not meaningfully encouraging the children to go with

Father during drop-offs, not disciplining the children for refusing to do so, and

expressing undue concern for the children’s safety while in Father’s custody.

To the extent Father contends that this court has mandated dispositive

weight be attributed to factors concerning parental alienation as a matter of

law, he is incorrect. Indeed, it appears that the authority to which Father cites

in support of this contention either does not exist or does not stand for the

proposition for which he asserts it does. Notably, Father’s brief includes the

following quotation:

“Where the record demonstrates that one parent has engaged in a sustained campaign to alienate the children from the other

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parent, … [t]he court must act to protect the best interests of Children and cannot permit a parent to benefit from such misconduct. [sic] E.D., 33 A.3d at 83 [sic].

Appellant’s Brief at 39-40 (emphasis present in original, ending quotation

marks missing in original).

This Court can find no such case using the citation provided by Father,

nor any other source for the quoted language. Rather, the citation provided

directs this Court to Discover Bank v. Stucka, 33 A.3d 82 (Pa. Super. 2011),

an opinion entirely unrelated to child custody and containing no discussion of

parental alienation.

Additionally, Father cites to this Court’s opinion in S.M. v. J.M., 811

A.2d 621, 625 (Pa. Super. 2002), in favor of the proposition that “failing to

remedy alienation and pattern of obstruction would ‘irreparably harm’ child

[sic]” and thus, presumably, would require reversal. Appellant’s Brief at 40.

While Father’s citation did indeed bring this court to an extant opinion, it

simply does not say what Appellant says it does. Our opinion in S.M. v. J.M.

did not discuss parental alienation, it does not include the phrase “irreparably

harm” at any point, and further we discern no manner in which our holding in

that case is relevant to Father’s argument. 1

1 As a result of the aforementioned issues regarding Appellant’s dubious citations, “this Court is left to guess whether this counterfeit authority is the product of a chatbot, or if there is a more nefarious explanation for the misinformation.” Commonwealth v. Shie, 307 A.3d 668, 2023 WL 6878610, at *7 n.7 (Pa. Super. 2023)(unpublished); see also Sanders v. United (Footnote Continued Next Page)

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After thorough review of the record, we see no basis to doubt the trial

court’s representation that the court “took those facts [relative to mother’s

alienation of the children] seriously,” and “weighed those factors involving

those factual findings [] in Father’s favor,” but, in taking into consideration all

evidence before it, elected to “emphasize[] different factors in making its

ultimate decision.” Trial Court 1925(a) Opinion 10/16/2025 at 12. Such

decisions are the prerogative of the trial court in making a determination as

to the best interest of the children, and, again, this Court will not intervene

absent an abuse of discretion. Taylor, supra.

Here, we observe that while the trial court indeed found several factors

to favor Father, and several factors to favor neither parent, there were a

significant number of factors found to favor Mother. We note the following

from the trial court’s findings of fact: Mother has been the primary caretaker

of the children for almost eleven years; the children are thriving in their

current school district, are engaged in extracurricular activities, have strong

relationships with their friends, teachers, and coaches; they are surrounded

by mother’s extended family who live nearby and regularly participate in the

children’s lives; and mother has been an overall more consistent source of

States, 176 Fed.Cl. 163, 169 (Fed. Cl. 2025)(observing "[i]t is no secret that generative AI programs are known to 'hallucinate' nonexistent cases, and with the advent of AI, courts have seen a rash of cases in which both counsel and pro se litigants have cited such fake, hallucinated cases in their briefs" (citation omitted)).

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stability and care for the children. Findings of Fact at 20-30. The lower court

also noted that father voluntarily moved several hours away from the children,

had stopped attending their extracurricular activities, did not make any efforts

to call the children in the year preceding trial, the children are unfamiliar with

the school district in which Father now lives, and the distance between Father

and the children’s primary residence makes frequent travel difficult. Findings

of Fact at 20-30, 31-32.

It is certainly not unreasonable under these circumstances to craft an

order which prioritizes stability by leaving primary custody with Mother and

somewhat reducing Father’s custodial time. As we have repeatedly

emphasized, “the polestar of child custody law is to serve the best interests

of the child.” T.M. v. H.M., 210 A.3d 283, 292 (Pa. Super. 2019); see also

K.T. v. L.S., 118 A.3d 1136, 1157 (Pa. Super. 2015); C.B. v. J.B., 65 A.3d

946, 961 (Pa. Super. 2013).

Thus, we discern no abuse of discretion relative to Father’s first and fifth

issues and find these issues merit no relief.

Father’s second issue challenges the trial court’s ostensible reliance on

“personal experience,” which he contends the trial court allowed to supersede

both the law and the record before the court as the impetus for the lower

court’s custody order. Appellant’s Brief at 93. Of note, in his brief, Father seeks

reversal and remand to “an unbiased judge,” for new proceedings in this

matter. Id. However, as noted by the trial court, at no point during the

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proceedings below did Father move the court to recuse herself. Trial Court

Opinion 10/16/2025 at 29. Furthermore, in his brief, Father cites only to

precedent addressing lower court denials of motions to recuse. Appellant’s

Brief at 93.

Thus, we find that Father has waived this issue for failure to move for

recusal of the lower court. Pa.R.A.P. 302(a).

Father contends in his third issue that the trial court erred by failing to

consider the testimony and reports of Dr. Ken Lewis, a court-appointed

evaluator. Of note, the testimony at issue consists of an incomplete direct

examination conducted before the honorable Judge Mackrides in November of

2024. Appellant’s Brief at 97. However, Father did not call Dr. Lewis to the

stand during the expedited August 21, 2025, custody trial before Judge Berry.

Notes of Testimony 8/21/2025 at 38-39. As a result, Mother was not afforded

an opportunity to cross-examine the witness, nor did Mother call her own

competing expert witness, who had also conducted an evaluation of the

children. Trial Court Opinion at 35. While we acknowledge the trial court did

take judicial notice of the incomplete testimony offered in November of 2024,

upon doing so the court made clear it would only “assign [the testimony]

whatever probative value [the court thought was] worthwhile.” N.T.

8/21/2025 at 38. Father did not object to the court’s qualifying statement,

and thus this issue is waived. Id.; Pa.R.A.P. 302(a).

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Furthermore, even should we endeavor to review Father’s claim, there

is no significant discussion of the expert’s opinion in this section of his brief.

Appellant does not identify which recommendations or concerns offered by the

expert are not served or are otherwise disregarded by the trial court’s order,

but instead contends that the trial court’s having not explicitly referenced this

testimony in rendering her ruling is itself demonstrative of error. Appellant’s

Brief at 96. In support of this proposition, Father seems to attempt to cite to

In re D.A., 801 A.2d 614 (Pa. Super. 2002)2. However, nothing in that opinion

supports any such holding, nor does the opinion address analogous

circumstances, and as such this court finds it is not instructive.

In addition to citing no sources which support this novel proposition,

Father develops no coherent argument as to why this Court should hold that

a trial court deciding custody matters must explicitly reference any expert

witness whose testimony appears of record when issuing a ruling or opinion.

We decline to develop one for him. Commonwealth v. Lawrence, 2024 PA

Super 59, 313 A.3d 265, 278 n.3 (Pa. Super. 2024) ("It is well settled that

this Court will not act as counsel and will not develop arguments on behalf of

an appellant.")

2 The citation provided by Father reads “ D.A. v. R.A., 801 A.2d 614 (Pa. Super

2002).” Appellant’s Brief at 96. However, the provided citation leads this Court to the above-cited opinion.

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Father’s fourth issue challenges the trial court’s apparent delay in ruling

on various petitions he had filed over the several years preceding the August

21, 2025, trial. In support of his argument, Father cites to, inter alia, a May,

2025, e-mail correspondence between his then-counsel and court staff

bringing these petitions to the lower court’s attention following Judge Berry’s

then-recent assignment to this matter. Shortly thereafter, on June 6, 2025,

Father filed an additional petition for contempt, and a hearing was scheduled

for June 12, 2025.

At the outset of that hearing, the lower court, with the assistance of

counsel, assembled a list of petitions which had at that time not yet been

ruled upon. During that hearing, the lower court proposed consolidation of the

outstanding petitions as each addressed “the same nucleus of activity,” and

no party objected. Notes of Testimony 6/12/2025 at 6-10. Following testimony

regarding mother’s alleged contempt, the lower court noted that it would

continue to hold the pending petitions in abeyance. Id. Again, Father did not

object to this ruling, nor did he raise the issue of the pending contempt

petitions during the August 21, 2025, trial.

Now on appeal, father contends that the trial court’s delay in ruling on

these petitions violated his due process rights. However, as Father did not

object to the trial court’s clear ruling holding these matters in abeyance, and

he did not revisit this issue prior to the instant appeal, we find that the issue

has been waived. Pa.R.A.P. 302(a).

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For the foregoing reasons, we find that Father has failed to present any

issues meriting relief, and thus, we affirm.

Date: 5/29/2026

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