J.M. v. M.M.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2019
• Docket: 914 WDA 2018
• Status: Unpublished

Opinion

J-S76015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

M.M.,

Appellee No. 914 WDA 2018

Appeal from the Order Dated May 25, 2018 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD-15-005302-001

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 22, 2019

J.M. (“Mother”) appeals from the custody order dated May 25, 2018,

that awarded M.M. (“Father”) sole legal custody of A.B. (born in April of 2005),

J.M. (born in April of 2007), and S.M. (born in September of 2009) (collectively

“Children”). The May 25th order also awarded Father primary physical custody

of the Children and partial physical custody to Mother. 1 After review, we

affirm.

The scope and standard of review in custody matters is as follows:

[T]he 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

____________________________________________

1 Both Mother and Father filed pro se briefs with this Court. J-S76015-18

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.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,

on issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.

The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.

R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court’s conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

Mother raises the following six issues, some of which include numerous

sub-issues, for our review:

1. The [j]udge erred by awarding [Father] sole legal custody when the weight of the evidence under the factors of custody favored Mother, including but not limited to the subparts in paragraph two below.

2. The [j]udge erred by awarding Father primary physical custody when the weight of the evidence under the factors for custody favored Mother, including but not limited to:

a. by finding that Mother discourages a relationship between the Father and [] Children when the parties

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were practicing shared legal custody and [] Children demonstrated strong bonds and positive relationships with both parents; b. by finding that Mother performed most of the parental duties but weighing this factor in favor of Father, anticipating that he is capable of performing the same; c. by first finding that the factor of stability was not pertinent in this case except for later inappropriately weighing the factor against Mother for school absences; d. by giving Father school choice authority under circumstances that made Woodland Hills not in the best interest of [] Children; e. by not considering the well-reasoned preferences of all or any of [] Children about the physical custody schedule; … f. by finding that Mother attempts to turn [] Children away from Father when there was insufficient evidence of the same; g. by finding that, when it come[s] to the question of who is more likely to maintain a loving, stable, consistent and nurturing relationship for [] Children’s emotional needs, both parties fail but later weighs this factor in favor of Father despite acknowledging that Mother cares for all their needs and that Father denies their needs if he doesn’t have the exact same view as Mother[;] h. by finding that Mother is the heavier source of conflict despite the weight of the evidence favoring a finding against Father and despite finding that Father does not compromise with health care and education providers and fails to provide for [] Children in those areas, those areas being a source of conflict.

3. The judge erred by creating a custody Order that divests Mother [of] her parental role without substantive and sufficient evidence that such is in the best interest of [] Children, including but not limited to:

a. by ordering that Mother is prohibited from bringing any concerns to the attention of [] Children’s school and being prohibited from contacting the school without Father’s authorization;

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b. by ordering that Mother is prohibited from attending all parent teacher conferences, open houses, and other regularly scheduled school meetings and activities unless authorized by Father and by requiring Mother to leave if there is an issue at one of these events irrespective of the circumstances; c. by ordering that only Father can schedule and attend routine and specialist medical appointments unless Mother is authorized by Father to attend; d. by ordering that Mother cannot speak to any medical or education providers if Mother thinks there is an issue unless Father authorizes the same[,] which is particularly egregious when the [c]ourt found that Mother had the leading role in [] Children’s healthcare and education path; e. by requiring Mother to pay for all activities agreed upon by the parties if Father merely asserts he cannot afford the same; f. by reducing Mother’s physical custody time to five nights every two weeks when the parties equally shared physical custody; g. by instructing Father to give reasonable good faith effort at consideration of Mother’s opinion when Father demonstrated that his choices were against [] Children’s interest simply because Mother asserted the same. Additionally, this provision is too subjective and not enforceable or practical in application for Mother to have any parental role in [] Children’s lives; h. by limiting communication between the Mother and [] Children during Father’s custodial time when Mother and [] Children enjoyed regular contact and doing so despite even Father not wanting communication limited; i. by sacrificing Mother’s holiday time for Father’s need for holiday time without real reason; j. by unlawfully limiting Mother’s ability to contact [] Children’s medical and education providers solely for the purpose of obtaining medical records; k. by failing to recognize and account for the close and bonded relationship of [] Children to their Mother.

4. The [j]udge erroneously premised her Order upon “testimony from all custody related motions” because there is no “testimony” provided in motions court as such is not a fact[-]finding

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proceeding unless the parties were sworn in and proper procedure was followed.

5. The [j]udge erroneously failed to set forth what specific details of the “testimony from all custody related motions” she relied upon when rendering her decision.

6. The [j]udge committed errors through various evidentiary rulings that cannot be specifically identified at the time this statement is filed due to [] Children’s Fast Track requirement that the statement be filed with the Notice of Appeal.

Mother’s brief at 8-12.2

Here, in its opinion, the trial court set forth an extensive, factual and

procedural history of this case and included information relating to the

testimony of witnesses presented at trial. In addition, the trial court discussed

and applied the custody factors contained in 23 Pa.C.S. § 5328. The court ____________________________________________

2 Mother’s Statement of the Questions Involved does not comply with Pa.R.A.P. 2116 in that the issues are not concisely expressed without unnecessary detail. Mother also overlooks the explanation contained in Rule 2116 that provides that the statement “will be deemed to include every subsidiary question fairly comprised therein.” Moreover, the argument section of Mother’s brief does not comply with Pa.R.A.P. 2119(a), which states:

The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part— in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citations of authorities as are deemed pertinent.

Mother has neither divided the fifty-page argument section of her brief to match the list of questions she raises, nor has she included any citations to authorities to support her arguments. The only citations included in her brief are located in her statement of the scope/standard of review. In reviewing Mother’s appeal, we have overlooked these omissions/errors and will not quash this appeal, although it is within our power to do so. See First Union Mortgage Corp. v. Frempong, 744 A.2d 327, 333 (Pa. Super. 1999). Rather, due to the certified record and the trial court’s comprehensive opinion, we conclude that the issues are reviewable.

-5- J-S76015-18

also explained its reasons for the March 25, 2018 order and addressed the

issues Mother raised in her concise statement of errors complained of on

appeal.

It is apparent that Mother’s arguments are essentially requesting that

this Court re-find facts and re-weigh the evidence. However, our standard of

review requires that we “accept findings of the trial court that are supported

by competent evidence of record, as our role does not include making

independent factual determinations.” C.R.F., III v. S.E.F., 45 A.3d 441, 443

(Pa. Super. 2012). Rather, 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 finds of the trial court.” E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super.

2011).

We have reviewed the certified record, Mother’s brief, the applicable

law, and the thorough, well-reasoned opinion authored by the Honorable

Eleanor L. Bush of the Court of Common Pleas of Allegheny County, dated

September 14, 2018. We conclude that Judge Bush’s extensive opinion

properly disposes of the issues presented by Mother in this appeal.

Accordingly, we adopt the trial court’s opinion as our own and affirm the

custody order on that basis.

Order affirmed.

-6- J-S76015-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2019

-7- 15 J, AM Circulated 02/13/2019 07:53

IN THE COURT OF COMiv!ON PLEAS OF ALLEGHENY COUNTY, PE1'iNSYLVANiA FAMILY DIVISION

J.M., CHILDREN'S FAST TRACK

Appellant, FD 15-005302-001

v. 914 WDA2018

M.M., OPINION Appellee.

OPINION

---- · ·-�-----·-Bush,J. ________: , . ---------septemhe1·14;201&-·-------

A.M., S.M., and J.M., (collectively, the "Children") are the children of J.M.

("Mother") and M.M. ("Father"). Father filed a custody complaint on January 6, .

2016, and Mother filed a counterclaim on March 9, 2016 and an amended

counterclaim on March 8, 2017. The Court conducted a hearing in the matter on

April 4, 2018, April 13, 2018, April 23, 2018, and May 15, 2018. During the

hearing, the Court heard testimony from the following witnesses: (1) Father's

employee and close friend; (2) the superintendent of the Children's school district;

(3) S.M.'s baseball coach; (4) S.M.'s and J.M.'s soccer coach; (5) Dr. Douglas

DeIJa Toffalo, Ph.D.; (6) Father; (7) Dr. Manikum Moodley; (8) the Children's

former school counselor; (9) J.M.'s baseball coach; (10) J.M.'s kindergarten

1�0 1 teacher; (11) an education specialist with the County Department of Human

Services; (12) maternal aunt; (13) paternal aunt; (14) Mother; and (15) the practice

manager of the Children's pediatrician's office. The Court also interviewed all

three of the Children. The Court admitted 173 of Father's exhibits, 51 of Mother's

exhibits, and Court Exhibits 1 and 2 into the record.

The parties completed all testimony on May 15, 2018. On May 17, 2018,

with both parties present, the Court announced its decision and discussed its

findings related to the 16 custody factors that the court must consider pursuant to

the Domestic Relations Code. 1 The Court awarded primary physical custody of

t �C�hildren to Father arid p_ar.tia.Lp_hy_si.c.aLc.u_s.to.dyJo_Mo.ther._The_Co.urtawarded.---··---- ________ ------�h_e

sole legal custody to Father. The Court subsequently issued its final order on May

25, 2018. The order was entered on the docket on May 29, 2018. On June 22,

2018, Mother timely filed her Notice of Appeal and Concise Statement of Matters

Complained of on Appeal ("Concise Statement"). Mother's Concise Statement lists

six comprehensive errors, some with as many as eleven sub-errors, and

consequently will not be re-stated here.

II. Factual Background

Tile following background summarizes key facts established during the

course of the proceedings:

1 Tr. 7-24 (May 17, 2018).

2 the parties are the parents of three minor children. At the conclusion of the

hearing, the Children we.re ages 13, 11, and 8. Prior to the parties' separation in

early 2016, the parties and the Children lived together as an intact family. While

the parties were together, Father worked to support the family financially and

Mother stayed home to care for the Children. Mother was primarily responsible for

the Children's educational and medical needs. Following the parties' separation,

Father sought a more active role in the Children's education, health care, and

extracurricular activities. Mother has rebuffed Father's parenting attempts at every

tum and has actively tried to exclude him from participating in decisions regarding

________Jhe Children's lives. -·---·----------�-----------------�--···_________ _ �

Mother has been completely unwilling to accept Father's role as a parent

when dealing with educational issues. The Children all previously attended

Shadyside Academy, but were unable to remain enrolled for financial reasons.

Both parties live in the Woodland Hills School District, so Father enrolled the

Children there when it became clear private school was no longer an option. The

Children were set to begin school at Woodland Hills in the 2016-2017 school year.

Mother refused to take the Children to schoof and Father was forced to file an

2 When Father asked Mother if she would be taking the Children to school at the beginning of the school year, Mother responded: "My children will never go to [Woodland Hills]. Stop harassing me and stop torturing the children. You are a soulless scumbag." See Father's Exhibit 35.

3 Emergency Motion to resolve the matter.3 Following the Children's transition to

the new school, Mother's communications with Father and the school sought to

diminish Father's parental role even further.4 Mother's behavior became

particularly egregious when she unilaterally arranged to have two of the Children

moved up a grade level without including Father in the discussions or decision.5

Furthermore, on the final day of the custody hearing, Mother revealed that while

the litigation was proceeding, she submitted applications for two of the Children to

attend a different school without informing Father. 6 Father was not aware of the

Children's application until Mother sought to admit an exhibit documenting their

acceptance. 7

Mother has similarly been unwilling to accept Father's parental role when

informing Father bf the Children's medical appointments until after they occurred,

or on such short notice that Father was unable to make arrangements to attend. 8

3 See September 2, 2016 Order of Court. School attendance during Mother's custody time has remained an issue. 4 See e.g., Father's Exhibit 39 (In response to Father sharing with Mother a benign communication from S.M.'s teacher, Mother responds "Why are you having conversations with teachers that don't involve me. I have always been the main point person for all school issues! And 1'11 continue to be the main point person."); Father's Exhibit 55 (Mother criticizing Father's parenting in an email to the Children's principal, superintendent, and other educator); Father's Exhibit 76 (Mother again criticizing Father in an email to a teacher, principal, and others). 5 Tr. 272-274 (April 4, 2018). 6 Tr. 68- 70 (May 15, 2018). 1 See Mother's Exhibit V. 8 See e.g., Tr. 33-40 {April 13, 2018), Father's Exhibits 94-98.

4 When Father would attend the Children's appointments, Mother would swear at

Father in front of the health professionals and others in the office.9

Mother's efforts to exclude Father from the Children's lives have created

conflict with the Children's educators, physicians, and coaches. The school district

deemed it necessary to implement a special communication policy for the family

because the Children's teachers felt intimidated and did not wish to have any direct

° communication with Mother.1 Following an incident at the orthodontist where

Mother screamed at Father for asking the orthodontist questions about the

proposed treatment plan, the orthodontist's office sent Mother an email informing

---�---· --�·. her that her excessive use oLprofanity_was_unacceptable..and-that..if-she-could-not-----------·-

control her language in the presence of minors, the family would need to find a

different orthodontist.11 On the final day of the custody hearing, the parties

received a message from the Children's pediatrician threatening to dismiss the

family from the practice, specifically citing correspondence involving "a ·

considerable amount of chicanery ... as well as incredible amounts of profanity

and threatening Ianguage."12 One of the Children's coaches testified to Mother's

9 See Father's Exhibits 120-122, 125. 1 °Tr. 74 (April 4, 2018). 11 See Tr. 68-69 (April 13, 2018); Mother's Exhibit K-6. 12 Mother's Exhibit X. behavior at sporting events and said it would be a reason he would consider not

picking the Child for future teams.13

Conversely, the evidence showed that Father has ceaselessly attempted to

co-parent with Mother. Father attempted to discuss educational, athletic, and

extracurricular matters with Mother. Unlike Mother, who could not think of a

single time she compromised with Father, Father was able to name numerous areas

where he listened to Mother's opinion and chose to support her viewpoint.14

It was against this background that the Court evaluated each party's request

for primary physical custody and sole legal custody of the Children. .

___________ . UI. .Standard.of.Revlew �- ·�--------- ----�-·-----· -�--------���-----�-

When a trial court orders a form of custody, the best interests of the children

are paramount. To determine the children's best interests, the trial court must

consider the sixteen factors enumerated in 23 Pa. C.S. § 5328(a).

Then, when reviewing the trial court's custody decision, the Superior Court

applies the fo11owing standard of review:

In reviewing a custody order, ... [w]e 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.

13 Tr. 114-115 (April 4, 2018). 14 Tr. 140-142 (May 15, 2018). 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.15

IV. Discussion

A. The 'record supports the Court's award of sole legal and primary physical custody to Father.

As required by the Domestic Relations Code, the Court reached its

determination regarding the Children's best interests by considering each of the 16

custody factors delineated in 23 Pa. C.S. § 5328(a). Mother raises so many issues

on appeal that they amount to an overall assertion that the Court's findings and

concJusions were not supported by the evidence. Therefore, before addressing

separate, specific asserted errors, the Court will begin by summarizing and

---·----··------·---·---·-----discussirrg·itsfindings-regarding-e·ach-orth-�listl:fdffactors-.------···-·-�--··---·---··

The Court weighed six of the custody factors in Father's favor and weighed

only one of the custody factors in Mother's favor. The Court found alJ the

remaining factors either not applicable, neutral between the parties, or slightly in

Father's favor, but not significantly so. The Court did not find this a close case.

The Court found the evidence driving the Court's decision to be overwhelming in

its extent. The Court summarizes its analysis here, but does not attempt to identify

ts V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

7 all of the facts of record that support its decision. The transcript of the hearing and

admitted exhibits include additional support for the Court's findings.

The Court weighed Factor 1 in Father's favor. At the time of the hearing,

Parents were equally sharing physical custody of the Children. Although the Court

recognized that Mother does not prevent the Children from spending time in

Father's physical custody, she actively discourages their relationship with Father

by refusing to accept his role as a parent. Testimony and exhibits from multiple

sources support this conclusion.

For example, in Mother's testimony, she minimized Father's role as a parent

and instead referred to him as "a great playmate." When communicating with the

Children's school, Mother referred to Father as the Children's "frat brother" on

________ .. --- ·- ----·---m-lu �iple t occasions.r6 Mother denigrated Father in front of the Children and the .

Children's pediatrician at routine office visits." Furthermore, Father presented

evidence that Mother would condition Father's phone contact with the Children

upon him providing her with money .18

16 See Father's Exhibit 55 and Father's Exhibit 76. 17 See Father's Exhibit 120 (noting at the visit, "Mom accusing Dad of trying to piss her off by 'dressing like a f**�ng slob"' and "Mom threatening to call the police without any provocation and said she 'would like to 302 [Father's] aH"). 18 See Father's Exhibits 29, 159; For additional examples of Mother's behavior, See also, Father's Exhibits 76, 108, 154; Tr. 68 (May 15, 2018) (AM. describing Mother's negative statements about Father).

8 I The Court found Factors 2 and 2.1 not applicable. Mother does not challenge

these findings.

The Court weighed Factor 3 in Mother's favor. It was undisputed that

historically, Mother took the lead in fulfilling the full range of parental duties on

behalf of the Children, including health care, educational decisions, and addressing

the Children's respective special needs. The Court did observe that Father is both

capable of performing these duties and has made many efforts to participate in

fulfilling these duties since Parents separated, 19 but that observation does not

diminish the Court's having weighed the factor in Mother's favor.

------� _ . _ The J:;ourt weigheclEacioL4in-Eather�s-favor.-As..the-Court-explained-on----- - - -- ----

the record, because Parents reside near each other and were sharing custody

equally at the time of the hearing, the Children were able to maintain significant

continuity and stability in a shared custody arrangement. However, Mother

adamantly opposed the Children's enrollment in the Woodland Hills School

District and did not ensure their consistent attendance. Mother's failures to send

the Children to school became less frequent in the 2017-18 school year, but the

record reflected continued instances of Mother removing the Children from school

or not sending them on days they should have attended. As the Court stated to the

19 In addition, the Court points out that the parties have been exercising shared custody since separation. Thus, Father has been responsible for the Children's daily needs 50% of the time. Parents, in order for children to have continuity in their education, they must

actually be attending school. The evidence established that Father is better able to

ensure the Children's attendance, and the Court consequently weighed Factor 4 in

Father's favor."

The Court viewed Factor 5 as neutral between the parties. Both parents have

extended family. Nothing about the Court's custody decision threatens or

jeopardizes the Children's relationships with extended family, as they will continue

to have opportunities to see their relatives.

The Court viewed Factor 6 as neutral. The Court did not establish different

----------custody-schedules-f�r-separatB-Ghildren.-T-he-three-s-iblings·-will-continue-to-be---------· -----

raised together.

The Court did not weigh Factor 7 in either Parent's favor. The Court

acknowledged the Children's stated preference to maintain the existing physical

custody schedule, but concluded that some of their other preferences could not be

achieved under the existing schedule. For example, A.M., the oldest child, clearly

expressed the preference for the conflict between her parents to end and

demonstrated the insight to explain that her parents needed rules to follow to

20 See Tr. 289-305 (April 4, 2018) (Father's testimony), Tr. 241-248 (April 23, 2018) (Mother's testimony), Father's Exhibits 52, 57, 59, 61, 65 (official school attendance records); Mother's Exhibit P (self-created summary that the Court finds Jess reliable than official record).

10 reduce the conflict.21 J.M. very much enjoys going with Father to assist Father in

his work as a real estate appraiser, an activity Mother believes inappropriate for

J.M.22 A.M. enjoys attending her brothers' sports practices and games, again

something to which Mother objects.23 J.M. expressed as his strongest wish that he

get to all his basebalJ games, and asked if the Court could ensure that happens.24

Again, Mother objects to the boys' current levels of participation in baseball and

soccer. The Court found all of these preferences reasonable, given the Children's

ages, but concluded that awarding primary physical custody to Father would better

foster fulfillment of those preferences.25

The Court weighed Factor 8 in Father's favor. The Court heard credible

testimony that Mother talks negatively about Father in front of the Children and . uses mat-- re -ai _l_it_e-ms. sh;-ca-- f -d-butF-a a �� n f- , t _c-annot,_i -h_e r n ·;;�e-m __a tt �-t-ot turn the

Children against Father. For example, on one occasion, Mother arrived at Father's

house during his custody time to show the Children all of the new clothes and

shoes she had purchased for them. Mother then informed the Children they could

21 Tr. 72 (May 15, 2018). 22 Tr. 33 (May 15, 2018). 23 Tr. 75 (May 15, 2018). 24 Tr. 39 (May 15, 2018). 25 As the Court commented when stating the findings on the record, when considering the Children's preferences, the Court placed the greatest weight on A.M.'s insight regarding the conflict between Parents and the need for it to end. See Tr. 13-14 (May 17, 2018).

11 not have their new items while they were at the Father's house, causing the

Children to cry.26

The Court weighed Factor 9 in Father's favor, although the Court noted that

both Parents need to make changes in their behavior to ensure that the Children's

emotional needs are met. The record supports that Father shows the capacity to

reflect on his own behavior, to recognize its impact on the Children, and to alter his

behavior accordingly. For example, Father acknowledged that he both needed and

immediately sought his therapist's assistance in addressing the way he interacted

with J.M. after Father's discovery that J.M. was aware of the plans to advance him

a grade and participated in the failure to disclose that to Father.27

�----------- .. � ------�-�- - ---��----------�- - ----·---------�---�-�-----�----�·-·

26Tr. 248-251 (April 4, 2018); See also Tr. 57-59 (April 13, 2018) (Mother insists on taking A.M. to orthodontist to get braces off when she knows office will refuse because Father's payments are not yet current), Father's Exhibit 111; Tr. 123-124 (April 13, 2018) (Mother makes unnecessary police report when Children are not answering phone because they are sledding with Father), Father's Exhibit 150; Tr. 137-138 (April 13, 2018) (Negative impact on Children of Mother requiring Father to pick them up from pool), Father's Exhibits 161·163. 27 Tr. 274-275 (April 4, 2018), Father's Exhibit 42.

12 In contrast, Mother has shown no similar capacity. One striking example of

Mother's inability to attend to the Children's emotional needs arose during the

testimony of Dr. Moodley, the specialist who treats A.M. for her Postural

Orthostatic Tachycardia Syndrome (POTS). At Mother's request, Dr. Moodley

read into the record the notes from a consulting psychologist associated with Dr.

Moodley. These notes characterized the "family dynamics related to parents'

divorce" as "negatively impacting [A.M. 's] health." The notes further identified

A.M.'s "tenuous relationship with her mother" as "negatively impacting" her

adherence to needed daily medication, and specified that "mother's approach of

-----------yelling-creates-a-resistanee-to-taldng-medieation-!?8-A-;M:-·herself;-describing-the·--..--------·---

same appointment with the psychologist, reported that Mother devoted the majority

of the appointment to speaking about her own issues with the divorce and with

Father, until the psychologist intervened to request time with A.M. alone.29

The Court weighed Factor 10 in Father's favor. Unfortunately, the record

contains many examples of Mother's inability to maintain civil interactions with

health care professionals, school professionals and in other settings that are

28 Tr. 92, 100-101, 103-104 (April 13,.2018). 29 Tr. 84 (May 15, 2018). See also, Tr. 68 (May 15, 2018) (A.M. reports resorting to "fake crying" to get Mother to stop engaging in yelJing and screaming arguments with AM.).

13 important components of the Children's lives." As the Court explained on the

record, a parent, such as Mother, who cannot maintain basic civil conduct with the

various systems· that interact with her children cannot possibly attend adequately to

their daily needs.

Father, on the other hand, appears more capable of conducting himself

rationally and more capable of setting aside anger at Mother's conduct to focus on

the Children's needs. For example, for several months toward the end of the 2015-

16 school year and prior to the start of the 2017-18 school year, Mother unilaterally

advocated and then arranged for J.M. and S.M. to be moved up a grade level.

-�""·-----------Motherhroughtiirthe--assistance·-ora-.n�ducationaJ··sp-edaltsreinployeci-bytli.e···-�---····-···------

Allegheny County Department of Human Services to assist her. When Father first

became aware of Mother's efforts· and the specialist's involvement, he was angry.

30 See, e.g., Tr. 72-74 (April 4, 2018) (School district communication policy routing Mother's communications through administrators due to teachers feeling intimidated); Tr. 111-115 (April 4, 2018) (Mother's communication with T-ball coach and potential negative impact on S.M.); Father's Exhibit 121 (Pediatrician office note referring to Mother's "erratic" behavior and use of "obscenities"); Compare Father's Exhibits 79, 80 (showing each Parent's respective response to same email from J.M.'s teacher).

14 However, rather than entirely rejecting their advice, he accepted input from the

specialist who interacted with him and found the assistance beneficial enough that

he would re-institute their services now.31

· Factor 11 was not applicable, Parents reside in close proximity.

The Court weighed Factor 12 as neutral between the parties. Each parent is

quite available to attend to child care duties. Mother does not work, and Father

works from a home office. Each parent is capable of making appropriate child care

arrangements when necessary.

The Court weighed Factor 13 in Father's favor. The evidence on this factor,

�--. -more-tb�n..any-o thery.drove-the-Court-to-award -soleIegal-eustod y-to-Fathcr-Thc ... ··-······------- ----

record demonstrates an extremely high level of conflict between Mother and

Father. The evidence also compelled the Court to conclude that Mother's conduct

and adamant unwillingness to accept Father's exercise of his parental role

constitutes the source of much of the conflict. The record is replete with examples

of Mother causing unwarranted conflict with Father. The evidence shows that

31 See generally, Tr. 21-23, 180-181, 186, 280, 287-289 (April 13, 2018), Tr. 141 (May 15, 2018).

15 Circulated 02/13/2019 07:53 AM

Mother is too wrapped up in her disdain for Father to make decisions that are in the

best interests of the Children.32

Further, Father has demonstrated at least some ability to cooperate with

Mother and consider her views. In contrast, the record is devoid of any examples

of Mother agreeing with or compromising with Father, and Mother herse1f could

not think of a single example where she considered Father's view on an issue and

changed her viewpoint in response.33

The Court did not consider evidence related to Factor 14 significant enough

to affect the Court's conclusions. The Court noted concerns raised in the custody

evaluator's report regarding Mother's alcohol consumption, but did not reach any

conclusions about this concern.

Tne-Courfcfia·not consider evidence related to Factor 15 significant enough

to affect the Court's conclusions. Mother has experienced some significant

physical health conditions in the past, but these do not pose major issues now. The

Court noted its agreement with the custody evaluator's observation that Mother

32 See e.g., Father's Exhibit 27 (Father attempts to discuss affordable health care options with Mother and Mother responds "F*** you!"); See also, Father's Exhibit 28 (Father attempts to discuss the Children's school and Mother responds ''You are a soulless scumbag."); Father's Exhibit 32 (Father did not agree with Mother unilaterally changing the custody order and Mother responded "here is the deal, you are going to change your f***ing attitude or I'm gonna make your life a living bell."); Father's Exhibit 94 (Father reaches out to co-parentwhen it comes to · medical appointments and Mother responds "Your (sic) liar. You say the most bizarre things regarding the kids heath (sic). Bizarre· about everything ... your (sic) not mentally right. Please seek help and work [o ]n yourself!"). 33 Tr. 108 (May 15, 2018).

16 lacks insight. However, the Court's observations regarding this factor did not drive

the Court's conclusions regarding the Children's best interests.

The Court found Factor 16 not applicable.

Considering .all the factors, the Court found it necessary to award sole legal

custody to Father. The Court further concluded that awarding Father primary

physical custody by altering the school year custody schedule would best serve the

Children's needs. Among other things, the Court concluded that school attendance

issues and some frequent day-to-day conflicts regarding the Children's attendance

at sports practices and games would be either eliminated or at least best addressed

-�----�-- ------by-awarding-primary-·physical-eustody-to-Father;--'Fhe-eourrfurtherconduded-that----�---

these issues were most pressing during the school year. Consequently, the Court

maintained the equally shared physical custody schedule for the summer.

B. Mother has failed to identify any abuse of discretion or legal error that warrants reversal.

1. Mother's specific complaints regarding the Court's findings do not merit relief.

Mother's first error alleges that the Court erred in awarding Father

sole legal custody of the Children. Mother's second error alleges that the

Court erred in awarding Father primary physical custody of the Children.

The Court refers to its discussion above regarding the record support for its

findings, weighing of the evidence, and ultimate conclusions. Where Mother

17 has identified specific sub-errors, the Court will now provide additional

discussion, if needed.

In her first sub-error, Mother asserts that the Court erred in finding

that Mother discourages a relationship between Father and the Children. The

Court interprets this as a challenge to the Court weighing Factor 1 in

Father's favor and does not believe further discussion of this factor is

necessary.

In her second sub-error, Mother asserts that the Court erred in "finding that

Mother performed most of the parental duties but weighing this factor in favor of··--··-·--·-- --------- ·--·-·-·--------------·-- -�- - .

Father, anticipating that he is capable of performing the same." The Court

interprets this to challenge the Court's weighing of Factor 3. As discussed above,

the Court clearly stated that it weighed this factor in favor of Mother, not Father.34

Therefore, Mother's assertion that the Court erred in this respect is without merit.

In her third sub-error, Mother claims the Court erred "by first finding that

the factor of stability was not pertinent in this case except for later inappropriately

weighing the factor against Mother for school absences." The Court interprets this

as a challenge to its analysis of Factor 4. At no point did the Court find this factor

34 Tr. 10 (May 17, 2018).

18 to be "not pertinent."35 The Court did, however, weigh this factor in favor of

Father, for the reasons discussed above.

In her fourth sub-error, Mother alleges the Court erred "by giving Father

school choice authority under circumstances that made Woodland Hills not in the

best interest of the Children." The Court interprets this as a challenge to its award

of sole legal custody to Father, as Father's authority necessarily includes all

educational decisions, including choice of schools. The Court's discussion above

explains its decision to award sole legal custody to Father. Regarding school

choice in particular, the Court believes Mother so invested in her hatred of the

Woodland Hills School District that she is incapable of recognizing ways in which

the Children's current schools are suited to their needs and interests." ----�---··--------���----�- ...--------�--�--------------·------------............... ----.. . . ._,. _ .... _...,......-..-- - . - . . ---··-·

In her fifth sub-error, Mother alleges the Court erred by not considering the

well-reasoned preference of the Children regarding the physical custody schedule.

The Court's discussion above explains the Court's consideration of the Children's

preferences. The Court simply adds here that other factors outweighed the

Children's preference regarding the physical custody schedule.

35 See Tr. 10-11 (May 17, 2018). 36 See, e.g., Tr. 96-97 (April 4, 2018) (School district observation that J.M. arid S.M. thriving and adjusted at school unless Mother is present); Tr. 149-151 (April 13, 2018) (Father's observations of S.M. 's enthusiasm about school); Tr. 56-61 (May 15, 2018) (A.M. describing activities and her love of her school).

19 In her sixth sub-error, Mother alleges the Court erred in finding Mother

attempts to tum the Children against Father. The Court's discussion above

regarding Factor 8 addresses this issue.

In her seventh sub-error, Mother alleges the Court erred in finding Father is

more likely to· maintain a loving, stable, consistent and nurturing relationship with

the Children adequate to the Children's emotional needs. The Court's discussion

above regarding Factor 9 addresses this issue.

In her final sub-error, Mother alleges the Court erred in finding that Mother

is the "heavier source of conflict." The Court interprets this as a challenge to the

---------···---Gourt.!s-weighing·of-·Factor-1-3:-T-he-eourtnotes-thartne·1evel-ofconll1cfbetween ---------

the parties in this matter is unusually high. The parties lack the ability to agree on

both basic and major decisions concerning the Children. Of all the custody factors,

the conflict between the parties and their inability to cooperate on the most basic

level weighed most strongly in Father's favor and in the Court's award of sole

legal and primary physical custody to him.

2. The Court's Order appropriately implements the Court's � conclusion that Father shall have primary physical and sole legal custody.

Mother's third error takes issue with numerous provisions of the May 25,

2018 Final Order of Court. The Court interprets Mother's sub-errors 3(a), 3(b),

3(c), 3(d), 3(e), 3(g), and 3(j) to dispute the Court's decision to award. Father sole

20 legal custody. The Court interprets Mother's sub-errors 3(t), 3(h), 3(i), and 3(k) to

challenge the Court's decision to award Father primary physical custody.

Trial courts must necessarily exercise considerable discretion in drafting the

details of custody orders. Given the support on the record for the Court's award of

sole Jegal and primary physical custody to Father, the Court believes the specific

details in the order fell within the Court's discretion to fashion. Consequently, the

Court will not further address 3(a), 3(c), 3(d), or 3(j), as the Court has already

explained its legal custody analysis on the record with the parties present and in the

discussion above. The Court will not further address 3(t), 3(h), and 3(k), as the

-------·- - ---Gourt-has-already-explained-its-physical-custody-anal ysts.:on-the--re-cord-with-tlfe--··----·--

parties present and in the discussion above. The Court will, however, address 3(b),

3(e), 3(g) and 3(i) because Mother's complaints lead the Court to believe she is

misinterpreting the Order.

Regarding sub-error 3(b), Mother alleges the Court erred in ordering that she

should be prohibited from attending school events, such as parent-teacher

conferences, unless authorized by Father. The Order actually states that Mother

may attend these events. The Order provides that Mother does, however, have to

leave the event if a dispute should arise between herself and Father. The Court

finds it appropriate for Father to remain at the event should this occur, as Father

�l:) 21 was awarded sole legal custody and is responsible for making all educational

decisions.

The Court also believes that Mother is misinterpreting the Order in regard to

sub-error 3(e). During the hearing, Father credibly testified that activities Mother

wants the Children to participate in, such as skiing and golf, are not financialJy

feasible. Father testified that if he was awarded sole legal custody, he would permit

the Children to participate in activities important to Mother that he could

personally not afford as_ long as Mother was willing and able to pay for these

activities. As Father was awarded sole legal custody, the Court specified that he

would be unilaterally responsible for selecting the Children's extracurricular

activities. The Court did not discuss or alter the allocation of payment �------�------·--· -------------�----------------�--·---__.-�----------·--·---�-------- . . . - -�

responsibility for activities Father selects for the Children, as this fa already

covered in the parties' child support order. However, the Court did clarify Father's

sole legal custody right to condition his consent for the Children's participation in

an activity Mother proposes upon Mother agreeing to pay for the activity. This

seems reasonable to the Court, as Father would be acting within the scope of his

legal custody authority to simply refuse to permit the Children to participate in

these additional activities selected by Mother. The Order does not permit Father to

sign the Children up for anything he desires and then make Mother solely

22 /

responsible for payment of these activities as Mother seems to allege in sub-error

3(e).

Mother's sub-error 3(g) alleges that the provision of the Court's Order . . . requiring Father to consider Mother's input before making any legal custody

decisions is too subjective to enforce. Again, the Court thinks Mother simply

misunderstands the Order or perhaps the concept of sole legal custody. When the

. Court awarded Father sole legal custody, it conferred upon him the exclusive right

to make all major decisions on behalf of the Children. Father could then legally

make all of these decisions without Mother's input or consent. However, the Court

----------- -·--ord�rec:i-Fatlieftcnnforrifl'v1otlfer prioflo-malcing 1fiese decfs10ns far enough in -------

advance to allow Mother time to provide her input. The Court also ordered Father

to make a reasonable good faith effort to consider this input. The Court included ' these provisions to serve as a mechanism for ensuring that Mother's opinion would

be heard before major decisions were made, as Father has shown himself able to

consider Mother's input. However, if the Superior Court finds this requirement too

subjective to enforce, the Court suggests simply removing the requirement,

Finally, in sub-error 3(i), Mother claims that the Court erred "by sacrificing

Mother's holiday time for Father's need for holiday time without real reason." As

all other holidays in the order rotate annually, the Court assumes Mother is referring to whose custody takes precedence when conflicts between Jewish and

Christian holidays occur.

The parties and the Court discussed holiday traditions in depth so that both

parties' religious holidays could be accommodated. The two potential conflicts

identified were Easter and Passover, and Hanukah and Christmas. The Court

ordered that if Easter and Passover conflicted, Passover would take precedence and

Mother would have custody of the Children. The Court did this because Mother

requested Passover take precedence over Easter and Father agreed that it should.37

The Court ordered that if Christmas and Hanukah conflict, Christmas would take

precedence so that Father will have custody for Christmas Eve and Christmas Day.

Similarly, this was ordered upon the parties' agreement that Christmas should take -------,. . . ---�---·.. .- ·-----·------------------�--------- · ------�-- --� precedence over Hanukah.. Mother testified that Father loves Christmas Eve and

Christmas Day with the Children, and that she would "trump that over Hanukkah

... [ a ]bsolutely trump that over Hanukkah. "38

For the reasons discussed on the record and throughout this opinion, the

Superior Court should reject Mother's error 3 challenging details of the Court's

Order and custody determination.

3. The Court did not err in considering testimony from hearings held on motions presented while the full hearing was pending.

37 Tr. 214 (April 13, 2018). 38 Tr. 90 (May 15, 2018).

24 Mother's fourth error alleges that the Court erred in considering testimony

from two motions hearings, asserting generally that the testimony was not sworn

and that proper procedure was not followed. Mother is mistaken.

The Court admitted transcripts from two motions hearings into the record.

The first hearing occurred on November 7, 2017 in response to an emergency

motion Mother filed regarding the Children's grade level placement in their school

district. The Court held a full hearing on this motion, in which Mother, Father, and

both witnesses from the school district were sworn in. The second hearing occurred

on January 5, 2018 in response to a motion Mother filed concerning the status of

the Children's healthinsurance, Mother and Father were again both sworn in I

before the beginning of the motion hearing::_�---------------··-··--·· · ·-------------------···--- -·--�-------··----:----- --- The transcript from the November 7, 2017 motion was admitted to the

record on the first day of trial at Mother's request as Mother's Exhibit A.40 Mother

now alJeges that the Court erred in considering her own exhibit.

39 For background, while this matter originated in January 2016, ii was not assigned to the undersigned Judge until October 2, 2017, following two judicial recusals in September 2017. Mother quickJy filed numerous motions in the month of October. Recognizing the highly litigious nature of the case, the Court began the practice of swearing the parties in and having every motion argued on the record. The Court made extensive efforts lo accommodate Mother's numerous motions, including scheduling her motions at a different time than all other prose motions so that she would have adequate lime to address all of her issues. 40 See Mother's Exhibit A; Tr. 79 (April 4, 2018).

25 The transcript from the January 5, 2018 motion was admitted as the Court's

Exhibit 2 on the third day of trial in the interest of judicial economy after Mother

began to rehash the payment history of the Children's health insurance premiums

going back to 2016.41 At the time of the custody hearing, both parties were acting

prose and were also involved in ongoing litigation concerning equitable

distribution and child support. At times during the custody hearing, both parties

sought to offer testimony that was pertinent primarily to the pending proceedings

on financial issues. At the time of the custody hearing, the custody matter had not

reached a final resolution in over two years. The hearing, initially scheduled for

two days, was halfway through a third day, and it was apparent a fourth and

_ ________ __ potentially fifth day would need. to be scheduled. ;_ . Instead of dev_oJingJuiadng.time----·-----·-- ----------- to Father's response to Mother's testimony about the health insurance, the Court

chose to admit the transcript from the motion hearing in order to prevent repeat

testimony on an issue that was primarily relevant to the parties' child support

proceedings.

As the transcripts reflect, the testimony from these hearings was taken under

oath, and the parties were both given the opportunity to question witnesses, submit

evidence, and argue their respective positions. Consequently, the Superior Court

should reject Mother's fourth matter complained of on appeal. Alternatively, the

41 Tr. 123-129 (April 23, 2018). Court posits that the testimony from these two transcripts played a minimal role in

the Court's decision and any improper consideration of the testimony could

amount to nothing more than harmless error.

Mother's fifth error alleges the Court erred by failing to specify the

testimony the Court relied on from the motions hearings. The Domestic Relations

Code requires the Court to "delineate the reasons for its decision on the record in

· open court or in a written opinion or order.?" The Superior Court has held that

merely listing the factors" or simply stating that the court considered the factors

without further explanation" is insufficient under the statute. The Court does not

interpret 'this to require the Court to detail each specific exhibit and piece of

testimony it relied upon in reaching its _decision. For furtheLclarity. here-the Court--- - ---·----- --------�-----·-· --·----------- found the November 7, 2017 testimony illustrative of the parties' respective

abilities to work with the school administrators and each other in order to meet the

best interests of the Children. The January 5, 2018 transcript bore minimal

relevance to the custody proceedings outside of demonstrating the conflict between

the parties. Both transcripts· played a minor role in the Court's overall custody

decision. For these reasons, the Superior Court should reject Mother's fifth matter

complained of.

42 23 Pa. C.S. § 5323(d). 43 M.P. v. M.P., 4 A.3d 950, 955-56 (Pa. Super. 2012). 44 C.B. v. J.B., 65 A.3d 946," 950-51 (Pa. Super. 2013). · 4. Mother's remaining issue should be deemed waived for vagueness.

Mother's sixth matter complained of alJeges that the Court "committed

errors through various evidentiary rulings that cannot be specifically

identified.. .. "45 The statement of this issue violates Rule of Appellate Procedure

x 1925(b 4)(ii), which requires the appellant's concise statement to "identify each

ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge. "46

Pursuant to Rule 1925(b)(4)(vii), issues "not raised in accordance with the

provisions of ... paragraph (b)(4) are waived.?" The Pennsylvania Supreme Court

has recognized that: _______.. _ [t]he absence of a tria!_cqur_LQpinion-poses-a-substantfal-1mpediment" --- --·---------to-nre1tningfiiCana effective appellate review. RuJe 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appeJlate process.48

· "When a court. has to guess what issues an appellant is appealing, that is not enough

for meaningful review."? "In other words, a Concise Statement which is too vague

45 See Concise Statement of Errors Complained of on Appeal, 116. 46 Pa.R.A.P. 1925(b)(4)(ii). Pa.R.A.P. 1925(b){4)(vi) provides an exception to this rule that permits general statements of errors only when the appellant cannot readily discern the basis for the judge's decision and prefaces the statement of matters complained of with an explanation as to why the errors are only in general terms. Such an explanation was not provided here. 47 Pa.R.A.P. 1925(b)(4)(vii). 48 Commonwealth v. Lord, 119 A.2d 306, 308 (Pa. 1998). 49 Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super 2001) (quoting Commonwealth v. Butler, 756 A.2d 55, 57 (Pa. Super. 2000)).

28 "

to allow the court to identify the issues raised on appeal is the functional equivalent

of no Concise Stat�ment at all."50 The Superior Court has held that "[e]ven if the

trial court correctly . guesses the issues (a]ppellant . raises on appeal and writes an

opinion pursuant to that supposition, the issue is still waived."51

Unfortunately, with over 1000 pages of testimony contained in the transcripts,

and over 200 admitted exhibits, the Court is unable to even muster a guess as to

what potential evidentiary errors Mother may be complaining of and therefore

cannot elaborate on the issue. The Court therefore suggests that this issue is waived.

-----------�---- ----V.-·eonclusfon-;·--:-

For the reasons detailed above, the Superior Court should reject Mother's

issues for review and affirm this Court's May 25, 2018 Final Order.

By the Court:

so Id. at 686-687. 51 Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002) (citing Commonwealth. v. Lemon, 804 A.2d 34 (Pa. Super. 2002).