J.J.K. v. N.E.K.

• Court: Superior Court of Pennsylvania
• Decided: April 4, 2023
• Docket: 1263 MDA 2022
• Status: Unpublished

Opinion

J-A04019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.J.K. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : N.E.K. : No. 1263 MDA 2022

Appeal from the Order Entered August 5, 2022 In the Court of Common Pleas of Lancaster County Civil Division at No(s): CI-15-06455

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED: APRIL 4, 2023

Appellant, J.J.K. (“Father”), appeals pro se from the order entered by

the Lancaster County Court of Common Pleas on August 5, 2022.1 He

challenges the court’s denial of his petition for primary custody of his children.

After careful review, we affirm.

A.

Father and Appellee, N.E.K. (“Mother”), are the parents of J.A.K., born

in 2008, and J.R.K., born in 2010 (“Children”). Since their separation in 2015,

the parties have shared legal and physical custody of the Children, while

engaging in substantial custody litigation over which the current trial court

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1 While the trial court’s docket utilized the parents’ names, the parties used their initials on their briefs to this Court. We have changed the caption to the parties’ initials to prevent the identification of the children. Pa.R.A.P. 904(b)(2); Super. Ct. I.O.P. 65.44(B). J-A04019-23

judge has presided. Father is an attorney, who has represented himself in the

litigation.

Several of the custody disputes, including the current one, have involved

the Children’s multiple athletic activities, with which Father is heavily involved.

In its most recent order addressing this issue, the court allowed the Children

to “participate in extracurricular activities if both parents agree on the activity,

which consent shall not be unreasonably withheld.”2

The prior litigation also addressed Mother’s alcohol use, which had been

problematic and concerning to the Children. In June 2020, the trial court

prohibited both parents from consuming alcohol immediately prior to and

during custody periods. On appeal, however, this Court concluded that the

record did not support application of the no-alcohol provision to Father.3

On October 20, 2021, Father filed a Petition for Contempt/Special

Relief/Modify Custody, which is the basis of the current appeal. He alleged

that Mother violated the no-alcohol provision and had driven the Children

while intoxicated. Father sought primary physical custody. In response, on

October 25, 2021, the court ordered Mother to test with a breathalyzer

immediately prior to and during her custody for ninety days. The court

subsequently found that Mother complied with this order without incident.

2 Tr. Ct. Order, 6/12/2020, at V.A. (“June 2020 Order”).

3This Court vacated the application of the no-alcohol provision to Father but denied relief on his twelve other issues. J.J.K. v N.E.K, 256 A.3d 24 (Pa. Super. 2021) (unpublished memorandum).

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On January 13, 2022, Mother filed a contempt petition, asserting that

Father interfered with her custody. She alleged that Father surreptitiously

arranged on at least three days to pick up J.A.K. during her custody period,

and, without her consent, take the eighth grader to early morning film

sessions with the high school football team. Mother also averred that Father

unsuccessfully applied to hold the Children back for the 2021/2022 school

year, pursuant to Pennsylvania’s Act 66 in response to the COVID-19

pandemic. Mother claimed Father applied to this program without her consent

to “gain tactical advantage athletically[.]”4

Father filed his own contempt petition on January 18, 2022, alleging

that Mother unreasonably withheld consent for J.A.K. to attend the film

sessions in violation of the June 2020 Order. On January 21, 2022, the court

ordered Mother to permit J.A.K. to attend the film sessions and ordered Father

to provide transportation if needed.

In July 2022, the trial court presided over hearings addressing the

parties’ contempt petitions and Father’s petition for primary custody. During

the hearing, the trial judge spoke to the Children individually in camera, where

they indicated their preference to spend more time with Father.

On August 5, 2022, the trial court entered its order addressing the

contempt petitions and the custody schedule [“August 2022 Order”]. The court

found both parties in contempt for violating the no-alcohol provision. ____________________________________________

4 Mother’s Petition for Contempt of Custody Order dated June 11, 2020, 1/13/22, at ¶ 24.

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Subsequently, however, the court acknowledged that the no-alcohol provision

applied only to Mother. The court additionally held Father in contempt for

interfering with Mother’s custody when he drove J.A.K. to the football film

sessions without her consent, which the court found Mother had not

unreasonably withheld.

Turning to Father’s petition for primary custody, the court concluded

that it was in the best interest of the Children to continue with shared legal

and physical custody, after considering each of the statutorily required

custody factors. Broadly, the court observed that the Children were “doing

well under the current schedule,” and benefited from the parties’ “different

parenting styles[.]”5 Moreover, the court found that “reducing Mother’s

custodial time would not be in the best interest of the Children and would

likely serve to marginalize her in the lives of the [C]hildren.”6 Accordingly, the

court denied Father’s request for primary custody.

Father filed his Notice of Appeal on September 2, 2022. The trial court

and Father complied with Pa.R.A.P. 1925. Before this Court, Father presents

the following questions:

1. Whether the [t]rial [c]ourt erred and abused its discretion by heavily relying on Father’s alleged no-alcohol condition from its June 12, 2020 Order, as evidenced by it being underlined twice in the Trial Court Opinion, and even finding Father in contempt of

5 Tr. Ct. Op., 8/5/22, at 6, 8.

6 Id. at 11.

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said Order, despite that condition being vacated previously by the Superior Court on appeal?

2. Whether the [t]rial [c]ourt erred and abused its discretion by ignoring the admittedly well-reasoned preferences of 14 year old and 12 year old children and by ignoring the concerns of the Children as they relate to their time at Mother’s house, and instead ambiguously finding that Father “more than likely not” indirectly, maybe unintentionally, demeaned Mother’s authority, thereby leading the [t]rial [c]ourt to find the Children’s preferences and testimony had been influenced by Father, despite stating on the record the Children were not influenced and even allotting time for the parties to agree upon a primary custody schedule for Father after the testimony of the Children?

3. Whether the [t]rial [c]ourt erred and abused its discretion in finding that Factor 8 favored Mother because Father took [J.A.K.] to football film sessions over Mother’s objections despite the [t]rial [c]ourt signing an Order stating that “[J.A.K.] shall be permitted to attend morning film sessions with the football team at 7 a.m. during Mother’s periods of physical custody if [J.A.K.] so desires. Father shall provide transportation if Mother is unable to provide transportation or if arrival by bus is too late.”?

4. Whether the [t]rial [c]ourt erred and abused its discretion in concluding Factor 10 slightly favored Mother where the Children testified otherwise and the [t]rial [c]ourt completely incorrectly stated Father’s desire to hold back the Children as wholly for athletic reasons, where all evidence produced at the hearing showed Father had academic and emotional reasons for holding back the Children through Pennsylvania’s implementation of Act 66 in response to the COVID-19 pandemic?

5. Whether the [t]rial [c]ourt erred and abused its discretion by failing to award Father primary physical custody where such an award was supported by the record?

Appellant’s Br. at 23-24.

B.

Father contends that the trial court erred and abused its discretion in

denying him primary custody of the Children. This Court reviews custody

determinations for abuse of discretion, and our scope of review is broad.

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S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014). While we must accept

the trial court’s findings if supported by the record, we are not bound by the

court’s “deductions or inferences from its factual findings.” Id. “On 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 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.” Graves v. Graves, 265 A.3d 688, 693 (Pa. Super.

2021) (citation omitted).

In all custody determinations, the best interest of the child is

paramount. Id. at 698. “In a dispute between parents, each parent shares the

burden of proving, by a preponderance of the evidence, that an award of

custody to him or her would serve the best interests of the child.” Id. (citation

omitted). The trial court “shall determine the best interest of the child by

considering all relevant factors, giving weighted consideration to those factors

which affect the safety of the child,” including the seventeen factors mandated

by the Custody Act. 23 Pa.C.S. § 5328(a). The court must “delineate the

reasons for its decision[.]” Id. § 5323(d).

C.

Father first faults the trial court for finding him in contempt for violating

the no-alcohol provision of the June 2020 Order, which applied only to Mother.

While Father recognizes that the trial court subsequently acknowledged its

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error in applying the no-alcohol provision to him, he contends that the court’s

error during the hearing made it “impossible” for the court to evaluate his case

properly. Appellant’s Br. at 30.

The trial court acknowledged in its Rule 1925(a) Opinion that it erred in

finding Father in contempt for consuming alcohol in front of the Children but

rejected Father’s assertion that it “heavily rel[ied]” on its error in rendering

its custody determination. Tr. Ct. Op., 10/3/22, at 2. Moreover, the court

emphasized that it fined Father not for alcohol use but for custody interference

related to the football film incidents. Id. We agree that, although the trial

court misspoke in its initial opinion, it acknowledged its error in its Rule

1925(a) Opinion and clarified its findings. Appellant’s claim that the court’s

error impacted its judgment throughout the custody proceeding is belied by

the record, which shows that the court conducted a thorough assessment of

the best interests of the Children through proper consideration of the statutory

factors. Accordingly, no relief is due.

Relatedly, Father also contends that the trial court abused its discretion

in minimizing Mother’s alcohol issues, arguing that the court should have

found Factor 14 of Section 5328(a), addressing drug and alcohol abuse, to

weigh against Mother. He alleges a “pattern” whereby Mother “cleans up the

drinking issues as a hearing approaches.” Appellant’s Reply Br. at 6.

The trial court rejected Father’s suggestion that it minimized Mother’s

alcohol use, emphasizing that it mandated her use of the breathalyzer in its

October 2021 Order and held her in contempt for her drinking. Tr. Ct. Op.,

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10/3/22, at 3-4. While acknowledging that Mother’s alcohol use had been

concerning to the Children, the court highlighted that the Children had not

reported incidents of Mother’s drinking since the October 2021 Order, which

was eight months prior to the hearings.

After review of the record, it is clear that the trial court acknowledged

the effect of Mother’s alcohol use on the Children but, nevertheless,

determined that the best interests of the Children would be better served by

maintaining shared custody, in light of the other factors and Mother’s recent

behavior. We conclude that the court did not abuse its discretion in so

concluding.

D.

Turning to Factor 7, addressing the Children’s preferences, Father

asserts that the trial court erred in ignoring the Children’s preference to spend

more time with him. Appellant’s Br. at 34-35 (citing N.T., 7/13/22, at 9, 15,

18, 30). He emphasizes that the Children explained their preference by noting

Father’s support of their athletics, the more active lifestyle and their ability to

spend time with their younger half-siblings at Father’s house, and concerns

related to Mother’s past drinking. Father argues that the court should have

placed greater weight on the Children’s strong preferences given their ages

and maturity. Id. at 44 .

Father additionally faults the trial court for finding that he influenced the

Children’s custody preferences by “indirectly demean[ing] and minimiz[ing]

Mother’s authority and concerns.” Id. at 38 (quoting Tr. Ct. Op., 8/5/22, at

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7). He asserts that these findings conflicted with the court’s conclusion that

neither of the parties “specifically told [the Children] what to tell” the court.

Id. (citing N.T., 7/13/22, at 45).

We conclude that the trial court did not abuse its discretion regarding

Factor 7. Recognizing that the Children expressed their “well-reasoned”

preference to spend more time with Father, the court expressed its concern

that the preference may have been influenced by Father’s actions. The court

opined that Father’s behavior had the effect of “marginaliz[ing] Mother’s role

in the lives of their Children through actions some may consider bullying or

the force of his personality.” Tr. Ct. Op. 10/3/22, at 2. Upon review of the

record, we conclude that the trial court’s analysis does not indicate that it

abused its discretion, especially considering the court’s ability to observe the

family dynamics and the demeanor of the parties over several years.

E.

In his third issue, Father challenges the trial court’s analysis of Factor

8, which relates to “attempts of a parent to turn the Children against the other

parent.” Appellant’s Br. at 46; 23 Pa.C.S. § 5328(a)(8). He rejects the trial

court’s reliance on the football film session incidents to weigh this factor

against him, noting that the court ultimately allowed J.A.K. to attend the

sessions. He argues that the court should have viewed these incidents not as

an attempt to turn the Children against Mother but as an attempt to provide

an opportunity for J.A.K. Appellant’s Br. at 50.

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Our review of the record supports the trial court’s determination. The

court opined that Father’s decision to pick up J.A.K. without Mother’s consent

“shows a disregard for Mother’s parental authority that disparaged her in the

eyes of the Children[.]” Tr. Ct. Op., 8/5/22, at 7. We find the court’s analysis

reasonable, given Father’s blatant undermining of Mother’s authority by

conspiring with their son to violate her decision.

F.

Father contends, in his fourth issue, that the trial court abused its

discretion in weighing Factor 10, which requires consideration of whether one

parent “is more likely to attend to the daily physical, emotional,

developmental, educational[,] and special needs of the child.” Appellant’s Br.

at 56; 23 Pa.C.S. § 5328(a)(10). Father faults the court for weighing this

factor against him based upon his filing to hold the Children back in school for

the 2021/2022 school year. Father asserts that the trial court incorrectly

stated that he desired to hold the Children back solely for athletic advantage,

when “evidence produced at the hearing showed Father had academic and

emotional reasons” for the application.” Appellant’s Br. at 51. He cites to text

messages entered into evidence at the hearing indicating J.A.K.’s desire to

repeat the year as well as Father’s concerns related to SAT scores and J.A.K.’s

ability to take Algebra.7 Id. at 52-54.

7 Father also argues that he better supported the Children’s emotional, developmental and education needs, asserting that they were happier and (Footnote Continued Next Page)

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In addressing Factor 10, the trial court found that “[b]oth parties are

equally likely to attend” to the Children’s needs. Tr. Ct. Op., 8/5/22, at 8. The

court, however, found this factor to favor Mother “slightly” based upon

Father’s Act 66 application, which it viewed as being solely motivated by

seeking athletic advantage. The court stated that there was “no evidence

presented” that this action would benefit the Children “academically or

emotionally.” Id.

Our review confirms that there was evidence presented at the hearing

which referenced academic as well as athletic reasons for the Act 66

application. See N.T., 7/15/22, 176-77. The court’s misstatement, however,

does not undermine its assessment of this factor as “slightly” favoring Mother

nor its weighing of this factor in conjunction with the other factors to conclude

that it is in the Children’s best interests to continue a shared custody

arrangement.8 Accordingly, no relief is due.

H.

In his final issue, Father reiterates the arguments presented above,

generally contesting the trial court’s assessment of the Children’s best ____________________________________________

more involved at his house. He emphasizes that J.R.K. made suicidal statements when at Mother’s house, allegedly due in part to her drinking. Id. at 51, 56. 8 The trial court found ten factors which did not apply or favored neither party, while it found two factors favored shared custody, with only one factor slightly favoring Father, one factor favoring Mother, and another slightly favoring Mother. Although the court did not explicitly designate which party Factor 7 favored, its thorough assessment of that factor supports shared custody, as discussed above.

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interests, which he believes favor granting him primary custody. In

accordance with our well-established standard of review, we decline to

reweigh the trial court’s thorough assessment of the Section 5328(a) factors,

which is supported by the record. See Graves, 265 A.3d at 693. Accordingly,

we conclude that Father did not demonstrate that the trial court erred or

abused its discretion in denying him primary custody of the Children in its

August 2022 Order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/4/2023

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