D.A.D. v. A.D.H.

• Court: Superior Court of Pennsylvania
• Decided: February 27, 2018
• Docket: 1016 WDA 2017
• Status: Unpublished

Opinion

J. A30040/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

D.A.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : A.D.H., : No. 1016 WDA 2017 : Appellant :

Appeal from the Order, June 28, 2017, in the Court of Common Pleas of Allegheny County Family Court Division at No. FD07-008810-006

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 27, 2018

A.D.H. (“Father”) appeals pro se from the June 28, 2017 order and

parenting plan granting sole legal custody of the parties’ two minor children,

G. and C., to appellee, D.A.D. (“Mother”). For the following reasons, we

affirm.

The trial court summarized the relevant facts and procedural history of

this case as follows:

The parties married in 2000, separated in 2007 and divorced in 2010. They have two children, [G.] and [C.] Mother filed a Complaint in Divorce on October 2, [2]007. Father filed a Complaint for Custody on October 11, 2007 and a long, arduous and acrimonious custody battle began. The case has a long history of the parties fighting over scheduling, extracurricular activities and certain health issues of the children. As a result, the Court appointed a Guardian Ad Litem (GAL) for the children, and eventually, granted sole legal custody to Mother on a J. A30040/17

temporary basis. At time of trial, the parties were following a 2/2/5/5 schedule with Mother having Monday and Tuesday overnights and Father having Wednesday and Thursday overnights. Both parties sought modification of the existing schedule and sole legal custody. Trial was held on October 3, 2016, October 11, 2016 and January 24, 2017.

The Court heard testimony from the parties, Children’s Maternal Aunt Doris Olinger, GAL Rebecca K. Fenoglietto, and court[-]appointed psychologist Joseph Greenberg[,] PhD. Father called as witnesses a medical expert, the children’s religious educator, their piano teacher and their Irish Dance teacher. The court interviewed the children. Following trial, the [c]ourt considered the 16 factors required in a custody determination in light of the evidence and testimony of the parties. The Court’s findings on each of the factors is set forth in the [June 28, 2017] Order and Parenting Plan. Seven of the factors favored Mother. The remaining factors were either not relevant or favored neither party. None of the factors favored Father. The biggest issue of contention was Father’s obsession with what he perceived to be a serious weight problem of his daughter, [G.] The parties have bitter, ongoing disagreements over the appropriate medical course for [G.], and the extracurricular activities in which she should participate. Specifically, Father insists that both children participate in Irish dance classes, something neither child nor Mother want to continue.

Trial court opinion, 9/11/17 at 1-2.1

As noted, on June 28, 2017, the trial court entered a lengthy order and

parenting plan granting Mother sole legal custody of the parties’ two minor

children. (See trial court order and parenting plan, 6/28/17.) On July 11,

1We note that the trial court opinion does not contain pagination; for the ease of our discussion, however, we have assigned each page a corresponding number.

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2017, Father filed a timely pro se notice of appeal. On July 12, 2017, the

trial court ordered Father to file a concise statement of errors complained of

on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. On July 31,

2017, Father filed a timely Rule 1925(b) statement that spanned 24 pages in

length and raised 50 allegations of error. Thereafter, on September 11, 2017,

the trial court filed its Rule 1925(a) opinion, incorporating its July 28, 2017

order and parenting plan. (See trial court opinion, 9/11/17 at 3.)

Preliminarily, we note that Father’s “concise” statement fails to comply

with Rule 1925(b). This court has long recognized that “Rule 1925 is a crucial

component of the appellate process because it allows the trial court to identify

and focus on those issues the parties plan to raise on appeal.” Kanter v.

Epstein, 866 A.2d 394, 400 (Pa.Super. 2004), appeal denied, 880 A.2d

1239 (Pa. 2005), cert. denied, 546 U.S. 1092 (2006). “The Statement shall

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge.”

Pa.R.A.P. 1925(b)(4)(ii). However, the filing of a timely Rule 1925(b)

statement alone “does not automatically equate with issue preservation.”

Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa.Super. 2007), affirmed, 977

A.2d 1170 (Pa. 2009). In Tucker, a panel of this court explained that:

[T]his Court has held that when appellants raise an outrageous number of issues in their 1925(b) statement, the appellants have deliberately circumvented the meaning and purpose of Rule 1925(b) and ha[ve] thereby effectively precluded appellate review of the issues [they] now

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seek to raise. We have further noted that such voluminous statements do not identify the issues that appellants actually intend to raise on appeal because the briefing limitations contained in Pa.R.A.P. 2116(a) make[] the raising of so many issues impossible. Further, this type of extravagant 1925(b) statement makes it all but impossible for the trial court to provide a comprehensive analysis of the issues.

Id. at 346 (citations and internal quotation marks omitted; brackets in

original). Thus, “the Pa.R.A.P. 1925(b) statement must be sufficiently

concise and coherent such that the trial court judge may be able to identify

the issues to be raised on appeal, and the circumstances must not suggest

the existence of bad faith.” Jiricko v. Geico Ins. Co., 947 A.2d 206, 210

(Pa.Super. 2008) (emphasis added), appeal denied, 958 A.2d 1048 (Pa.

2008); see also Kanter, 866 A.2d at 401 (finding issues in Rule 1925(b)

statements waived where the Court determined that “outrageous” number of

issues was deliberate attempt to circumvent purpose of Rule 1925).

Here, we cannot conclude that Father’s 24-page, 50-issue statement

was so concise and coherent that the trial court was able to conduct a

meaningful review of all the issues he sought to raise. (See Father’s “Matters

Complained of in Appeal of the June 28, 2017 Custody Order[,]” 7/31/17 at

1-24.)

Alternatively, even if Father had complied with Rule 1925(b), we could

nonetheless dismiss this appeal because his brief fails to adhere to the

Pennsylvania Rules of Appellate Procedure. It is well settled that parties to an

appeal are required to submit briefs in conformity, in all material respects,

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with the requirements of the Rules of Appellate Procedure, as nearly as the

circumstances of the particular case will admit. Pa.R.A.P. 2101. “Although

this Court is willing to liberally construe materials filed by a pro se litigant,

pro se status confers no special benefit upon the appellant.” In re Ullman,

995 A.2d 1207, 1211-1212 (Pa.Super. 2010), appeal denied, 20 A.3d 489

(Pa. 2011) (citations omitted). We will not advocate or act as counsel for an

appellant who has not substantially complied with our rules. Bombar v.

W. Am. Ins. Co., 932 A.2d 78, 93 (Pa.Super. 2007) (citation omitted). “This

Court may quash or dismiss an appeal if the appellant fails to conform to the

requirements set forth in the Pennsylvania Rules of Appellate Procedure.”

Ullman, 995 A.2d at 1211 (citation omitted); see also Pa.R.A.P. 2101.

Instantly, Father’s brief falls well below the standards delineated in our

Rules of Appellate Procedure. On appeal, Father raises 51 claims in his

“Statement of the Questions Involved,” the overwhelming majority of which

allege unsubstantiated claims of bias and incompetence on the part the

Honorable Kim D. Eaton, during the custody proceedings. (See Father’s brief

at 6-15.)

Additionally, the “Argument” portion of Father’s brief is divided into

16 sections that fail to correspond to the 51 issues he purportedly raises on

appeal, in violation of Rule 2119(a). See Pa.R.A.P. 2119(a) (requiring that

the “argument shall be divided into as many parts as there are questions to

be argued.”); see also Father’s brief at 28-79. Despite spanning 52 pages in

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length, appellant’s “Argument” also fails to contain citation to any legal

authority, in violation of Rule 2119(b); nor provides this court with reference

to the record, in violation of Rule 2119(c). See Pa.R.A.P. 2119(b)-(c).

We further note that Father’s brief, excluding appendices, is 87 pages

long. The Pennsylvania Rules of Appellate Procedure limit a principal brief to

14,000 words, unless the brief does not exceed 30 pages.

Pa.R.A.P. 2135(a)(1). Where the brief exceeds 30 pages, a certificate of

compliance with the 14,000 word-count limit must be filed. See

Pa.R.A.P. 2135(d) (stating that, “[a]ny brief in excess of the stated page limits

shall include a certification that the brief complies with the word count limits”).

Here, Father’s brief is nearly three times the maximum page length prescribed

by Rule 2135(a)(1), and yet he has failed to include in his brief a certification

that his brief does not exceed 14,000 words.

Lastly, the record indicates that Father’s reproduced record also suffers

from fatal defects because he failed to designate the contents of the record

pursuant to Rule 2154. See Pa.R.A.P. 2154(c) (noting that, “[i]n a children’s

fast track appeal, the appellant shall not later than 23 days before the date

fixed by or pursuant to Rule 2185 (service and filing briefs) for the filing of his

or her brief, serve and file a designation of the parts of the record which he or

she intends to reproduce and a brief statement of issues which he or she

intends to present for review.”).

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Given Father’s blatant disregard for our Rules of Appellate Procedure,

we will not address all of the issues raised in his “Statement of the Questions

Involved.” See Jiricko, 947 A.2d at 210; Tucker, 939 A.2d at 346. However,

because this is a Children’s Fast Track case, and it was apparent from oral

argument that the crux of Father’s claim is that the trial court erred in granting

sole legal custody of the parties’ two minor children to Mother due to what

Father perceives to be Mother’s complete neglect of G.’s weight problem and

the appropriate exercise activities in which G. should engage, we will address

this sole contention. (See Father’s brief at 15-18.) Father is adamant that

both children participate in Irish dance classes, something neither child wishes

to continue. (Id.) Father frames this issue by arguing that Judge Eaton is

biased against him and vehemently attacks Judge Eaton’s qualifications

throughout the duration of his brief. (See id. at 18-32.)

Our standard of review in custody matters is well settled.

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 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.

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With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.

G.A. v. D.L., 72 A.3d 264, 268-269 (Pa.Super. 2013) (citations and internal

quotation marks omitted).

Here, the trial court found that, given “Father’s literal obsession with

[G.’s] weight” and the “emotional damage” it may cause to G.’s self-esteem,

Mother is “more likely to maintain a loving, stable, consistent, and nurturing

relationship with [G.] adequate for [her] emotional needs[.]” (See Order and

Parenting Plan, 6/28/17 at 3-4, § 9.) Upon review, we conclude that the

record supports the trial court’s credibility determinations.

Specifically, the record belies Father’s contention that Mother is

unconcerned with G.’s weight gain and failed to undertake measures to ensure

G. engages in healthy exercise activities. Mother, an obstetrician gynecologist

for 20 years, testified that G. enjoys playing tennis and has indicated she

might want to pursue the sport in high school, and is active in cystic fibrosis

walks with her best friend S. (Notes of testimony, 10/3/16 at 24, 26.) Mother

further testified that G. participates in and enjoys a number of other physical

activities, but does not enjoy Irish dance classes:

Q. What activities does [G.] enjoy doing during your custody time?

A. She does tumbling and horseback riding as well. And she does speed skiing in the winter. She

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just told me this morning, I can’t wait until skiing starts. . . .

....

Q. What activities does [G.] not enjoy?

A. Irish dancing.

Id. at 27-28.

Mother also testified that she encouraged G. to continue in swimming

class and tried to communicate to Father “how beneficial swimming would be

for her[,]” but Father did not think it was good exercise, abandoned it, and

hired her a personal trainer and dietician. (Id. at 19, 63-64.) Lastly, the

record reveals that Mother testified at great length about her concerns over

G.’s weight gain and diet and the disagreements the parties have had over

her weight management. (See id. at 60-71.) Notably, Mother testified that

she removed G. from a UPMC weight management program that the parties

enrolled her in because she thought it was hindering G.’s progress. (Id. at

62-63.) Mother also testified that she does not think that the Fitbit activity

trackers that Father purchased for the children were a good idea because they

were not even at the minimum age to register for the device. (Id. at 65.)

Based on all of the foregoing, Father’s contention that Mother is neglecting

G.’s weight issues is not supported by the record and we will not disturb the

trial court’s credibility determinations on appeal. See G.A., 72 A.3d at 268.

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Based on the foregoing, we affirm the trial court’s June 28, 2017 order

and parenting plan granting sole legal custody of the parties’ two minor

children to Mother.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/27/2018

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