J.R. v. L.T.

• Court: Superior Court of Pennsylvania
• Decided: December 30, 2015
• Docket: 391 WDA 2015
• Status: Unpublished

Opinion

J-A29027-15, J-A29029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

v.

L.T.,

Appellee No. 391 WDA 2015

Appeal from the Order February 13, 2015 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD 07-003697-004

Appellee No. 495 WDA 2015

Appeal from the Order Dated March 25, 2015 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD 07-003697-004

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2015 J-A29027-15, J-A29029-15

In these consolidated appeals,1 J.R. (“Father”) appeals the March 25,

2015 custody order awarding him and L.T. (“Mother”) shared physical

custody and shared legal custody of their minor son, J.R., Jr. Father also

appeals the interlocutory discovery order that prohibited him from serving

subpoenas in the then-ongoing custody litigation without leave of court and

awarded Mother counsel fees totaling $2,290.75.2 We affirm.

J.R., Jr. was born out of wedlock during April 2007 of Mother and

Father’s relationship. Since his birth, J.R., Jr. either resided with Mother

alone or with Mother and Father in an intact family. For the first three years

of their son’s life, Mother maintained primary physical custody and Father

exercised periods of partial custody under an informal arrangement. On July

27, 2010, Father filed a custody complaint seeking primary physical custody.

On the same date, he seized J.R., Jr. under the guise of a pre-arranged

custody exchange. He refused to return the child to Mother unless she

reconsidered her objection to rekindling their romantic relationship. Mother

countered Father’s actions by contemporaneously filing a counterclaim for

primary physical custody and sole legal custody and an emergency petition ____________________________________________

1 As these matters involve identical parties and stem from an interrelated set of facts, we consolidated the appeals for disposition. 2 Upon the entry of a final order, a party can challenge the propriety of interlocutory orders that were not immediately appealable as of right. Quin v. Bupp, 955 A.2d 1014, 1020 (Pa.Super. 2008) (“[A] notice of appeal filed from the entry of the final order in an action draws into question the propriety of any prior non-final orders”).

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for relief pursuant to Pa.R.C.P. 1915.13, seeking the immediate return of her

son. On August 10, 2010, the trial court entered an interim order directing

J.R., Jr.’s immediate return to Mother’s physical custody. That order

awarded Father four hours of supervised physical custody per week.

A subsequent order extended Father’s periods of physical custody to

alternating weekends, and on January 3, 2011, the parties entered an

interim consent agreement whereby they shared physical custody on an

alternating weekly basis. Since then, the parties have litigated yearly

custody or contempt-related issues.

The trial court summarized the latest developments in the custody

dispute as follows:

Recent history starts in February 2014, when the parties were able to reach a consent agreement . . . outlining the custody arrangement. The parents agreed that they would share physical custody on a week-on week-off basis. The parents further agreed that legal custody would be largely shared, though Mother had the sole legal right to choose schools for the child. [T]his consent agreement did very little to stem the influx of litigation. The parties routinely returned to motions court. The conflict again culminated in two trials: one on contempt before Hearing Officer Valles in November 2014 and one on custody[.]

The latest custody trial comes by way of Father’s Petition for Special Relief-Custody (which this Court deemed a request for custody modification), dated July 10, 2014, and by Mother’s Cross-Complaint for Modification of Custody Order, dated August 26, 2014. Father later brought forth new matters of contempt and new requests regarding custody. This Court consolidated those matters with the already-scheduled February 2015 custody trial. The trial lasted two and [one-]half days[.] On March 24, [2015,] the parties appeared, and this Court made findings of fact on the record and issued its order.

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Trial Court Opinion, 5/29/15, at 6-7 (citations to the record omitted).3 As it

relates to the instant appeal, the trial court awarded shared legal custody

but designated specific authority over certain matters to each parent.

Mother was empowered to make educational and routine medical decisions.

Father was vested with authority over their son’s dental, orthodontic, and

optical care. Essentially, he objects to sharing legal custody with Mother.

On April 6, 2015, Father filed a Rule 1925(b) statement articulating

nine claims, which he reiterates on appeal as follows:

1. Did the Honorable Court err in its discretion regarding the best interest of the child pursuant to 23 P[a].C.S. §5323, 23 P[a].C.S. § 5328 [(a),] and 23 P[a].C.S. §5328[(b)]?

2. Did the Honorable Court err in its decision to forbid the non- custodial parent the right to be present at any non-public events or areas, including such places as locker-rooms?

3. Did the Honorable Court err in its decision to remove [Father’s] shared legal right to educational custody/decision making of the minor child . . . ?

4. Did the Honorable Court err in its decision to remove [Father’s] shared legal right to medical decisions, including authorizing services, and attending medical appointments of the minor child . . . ?

5. Did the Honorable Court err in its decision to remove the requirement of advanced notice on travel itineraries outside of Allegheny County? ____________________________________________

3 The trial court recited its consideration of the relevant best-interest factors on the record during the March 24, 2015 hearing. See N.T., 3/24/15, at 2- 8. Father does not articulate a specific challenge to the court’s consideration of the factors enumerated in 23 Pa.C.S. § 5328(a).

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6. Did the Honorable Court err in the denial of New Matters and Petition for Special Relief Custody [filed on] January 30, 2015 . . . ?

7. Did the Honorable Court err in its review of the evidence provided by the Appellant . . . ?

8. Did the Honorable Court err in allowing [Mother’s] testimony without supporting evidence . . . ?

9. Did the Honorable Court err in allowing [Mother’s] testimony and evidence of items/ circumstances that she previously rules the plaintiff could not testify to or provide related evidence . . . ?

Father’s brief at 2-3.

We review the trial court’s custody order for an abuse of discretion.

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial

court’s factual findings that are supported by the record and its credibility

determinations. Id. This Court will accept the trial court’s conclusion unless

it is tantamount to legal error or unreasonable in light of the factual findings.

Id.

Although Father presents nine arguments in his statement of questions

presented, he levels only seven arguments in his brief. As Father’s list of

questions presented do not correspond with his arguments, we address his

contentions as they appear in the argument section of his brief. Primarily,

Father asserts that the trial court erred or abused its discretion in fashioning

an award of shared legal custody whereby Mother maintained authority to

decide matters regarding education and medical decisions. The crux of this

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assertion is that the certified record does not reveal that the parties

exhibited the minimum level of cooperation required to maintain shared

legal custody. He contends that Mother is the source of discord, and since

he is the blameless party, he should exercise sole legal custody. Father

further argues that the trial court employed a gender bias in overlooking

Mother’s prior contemptuous conduct and in promoting Mother’s interest in

governing the child’s education and medical decisions over his. These

assertions subsume the first, third, and fourth arguments Father raised in

his brief.

In Yates v. Yates, 963 A.2d 535 (2007), this Court reiterated the

three considerations relevant to whether a trial court should award shared

legal custody in a highly contentious custody dispute. We explained,

In determining whether to award shared legal custody, the trial court must consider the following factors: (1) whether both parents are fit, capable of making reasonable child rearing decisions, and willing and able to provide love and care for their children; (2) whether both parents evidence a continuing desire for active involvement in the child's life; (3) whether the child recognizes both parents as a source of security and love; and (4) whether a minimal degree of cooperation between the parents is possible.

Id. at 542. Herein, Father challenges only the court’s consideration of the

factor concerning the minimal degree of cooperation. He does not dispute

the trial court’s rationale as it relates to any other aspects of the relevant

consideration.

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In rejecting Father’s positions, the trial court first noted that Mother

and Father both were fit parents who desired continuing involvement in J.R.,

Jr.’s life, and who are both viewed as a source of security and love. Next,

the court concluded that awarding Mother sole decision making authority

over education and medical decisions was in J.R., Jr.’s best interest. In

contrast to Father’s perspective of Mother as an antagonist, the trial court

believed that Father’s animosity toward Mother, and his persistent desire to

litigate aspects of the custody arrangement that he finds unsatisfactory, are

affecting J.R., Jr. negatively. Hence, in an attempt to alleviate some of the

conflicts, the trial court crafted a legal custody arrangement that provided

each parent unilateral authority over some aspect of their son’s life. The

trial court intended to create clearly demarcated lines of parental authority

to limit Father’s involvement in areas of J.R., Jr.’s life where his participation

has proven to be counter-productive to the child’s best interest. Thus, the

court concluded that, even after acknowledging that the level of parental

opposition that exists in this case would normally impede the grant of shared

legal custody, providing Father unilateral authority over certain areas of his

son’s dental, orthodontic, and optical care and granting Mother sole

authority over educational decision-making and routine medical decisions,

would best serve the child. For the following reasons, we find that the trial

court did not abuse its discretion by incorporating these limited exceptions to

the award of shared legal custody.

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Referencing, without discussion, our holding in Hill v. Hill, 619 A.2d

1086 (Pa.Super. 1993), Father asserts that the legal custody arrangement

that the trial court crafted is antithetical to the concept of shared legal

custody. While Father’s statement is an accurate representation of the law

when one parent wields ultimate authority to decide any parenting disputes,

that factual scenario is not at issue herein.

In Hill, supra, we addressed whether the trial court erred in awarding

shared legal custody with the added designation that, “In the event of

disagreement, Mother's preference shall prevail.” Id. at 1088. We held that

the trial court’s structure of legal custody was tantamount to providing “the

father authority in name only” because his decisions would always be subject

to the mother’s preferences. Id. at 1088. That is, the father could exercise

legal custody unless or until Mother disagreed with any one decision, and if

that occurred, she had final authority. Accordingly, we rejected the

purported grant of shared legal custody.

In contrast to the facts we encountered in Hill, where one parent

exercised ultimate decision-making authority over every possible

disagreement, instantly, the trial court bestowed upon Mother and Father

ultimate authority over specific facets of their son’s healthcare and

education. They share legal custody over all remaining aspects of J.R., Jr.’s

life and neither party is empowered to make those decisions unilaterally.

The distinguishing feature of this case alleviates the precise problem that we

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highlighted in Hill, as neither parent in the present case is exercising legal

custody in name only. Thus, Father’s allegation of error is unpersuasive.

Additionally, we observe that Father mistakes the trial court’s factual

findings that he, rather than Mother, is the source of dissonance and its

concomitant credibility determinations in Mother’s favor, as gender bias.

Notwithstanding his protestations to the contrary, the certified record belies

Father’s claim of bias. The record reveals that Father is overbearing in his

interactions with Mother and often exploits his interactions with Mother as

opportunities to berate her and accuse her of perceived malfeasance.

For example, Megan Edwards, the school psychologist who attends

J.R., Jr.’s individualized education plan (“IEP”) meetings, testified that

Father’s behavior during an August 2013 IEP meeting was particularly

troubling. N.T., 2/18/15, at 239, 243. Father interjected during the

meeting that Mother was not married, and he subsequently transmitted

emails to school staff indicating that Mother had been fired from her

employment or evicted from her home. Id. at 239. As it relates to Father’s

comments concerning Mother’s marital status, Ms. Edwards testified that

Mother deflected the intended insult and redirected Father by stating, “I’m

not going to get into this here . . . Let’s proceed with the . . . IEP meeting.”

Id. at 246. Father did not deny the altercation during the hearing; instead,

he diminished the incident as a five second interaction that did not upset

anyone other than Mother. Id. at 247. Ms. Edwards has also witnessed

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Father insult Mother in front of school staff on other occasions in an attempt

to goad her into retaliation. Id. at 239. In sum, she opined that, while

Father is genuinely interested in J.R., Jr.’s development, he is also interested

in inciting Mother and catching her in a lie. Id. Plainly, the record belies

Father’s assertion that Mother is the source of the parental discord and his

underlying allegation of trial court bias.

Father’s next set of complaints implicate the second and fifth

arguments that he asserts in his brief. He advances two bare contentions

challenging the propriety of two aspects of the trial court’s decision. First,

he assails the restriction that precludes Mother and Father from appearing at

non-public events and in private areas such as locker rooms and dressing

rooms when they do not have custody. Next, Father complains that the

court removed from the custody order a previously-used provision that

required the custodial parent to provide advance notice of any plans to

travel outside of Allegheny County. In its Rule 1925(a) opinion, the trial

court explained that J.R., Jr. would be better served if Mother and Father

limited their public interactions. See Trial Court Opinion, 5/29/15, at 14.

Hence, the court fashioned the custody order to “[eliminate] the tension and

conflict that the child must endure when his parents attempt to co-parent [in

public].” Id. at 14. Similarly, the trial court found that the notice

requirement created more tension and conflict between the parties than it

alleviated. It reasoned, “Both parents are capable and fit enough to travel

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with the child without the added burden of including the other [in its decision

making].” Id.

Father neglects to support either of the foregoing claims with legal

argument or citation to relevant legal authority. He simply posits that these

aspects of the trial court’s decisions are contrary to J.R., Jr.’s best interest.

Father’s contentions ignore our limited standard of review and the deference

that we have for the trial court’s fact-finding. See S.W.D., supra. Herein,

Father neglected to present any meaningful challenge to the court’s findings

or establish that the trial court’s best-interest determination is tantamount

to legal error or unreasonable in light of the factual findings. As Father

failed to present any substantive argument to support his naked assertions

of error, no relief is due. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super.

2011) (“where an appellate brief fails to provide any discussion of a claim

with citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”).

Father’s next assertion appears to contest the manner in which the

trial court disposed of his “‘New Matter’s [sic] and Request for Special Relief’

based on her bias[.]” Father’s brief at 12. This claim corresponds to the

sixth argument asserted in his brief. Essentially, he complains that the trial

court consistently ignored the allegations of contempt he directed toward

Mother. In confronting this issue, the trial court explained that it addressed

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Father’s “new matter” by denying his serial contempt allegations following

the custody hearing. The court explained,

On this matter, Father simply failed to make any case for contempt[.] His petition for contempt was largely incoherent, merely reiterating certain provisions of the February 5, 2014 consent order. . . . [Moreover,] much of the discussion about contempt involved a previous contempt trial before [a hearing officer]. That hearing is the subject of a related appeal before the Superior Court. See 494 WDA 2015. In other words, Mother’s alleged contemptuous acts had already been adjudicated, and Father was attempting to re-litigate the matter before this Court. This court allowed Father to present evidence of contempt between the November 2014 trial and the January 30, 2015 petition, but he could not do so.

Trial Court Opinion, 5/29/15, at 15 (citation to record omitted). In light of

the trial court’s explanation and Father’s failure to present any evidence of

bias other than the trial court’s alleged refusal to accommodate his pro se

status, this claim fails.

Furthermore, we observe that the record does not support Father’s

assertion that the trial court failed to accommodate his pro se status. The

court noted, “this [c]ourt cannot liberally construe Father’s arguments

[relating to Mother’s tardiness in returning Father’s telephone calls]. He

expected a great deal of his testimony and evidence to speak for itself.

Unfortunately, not everything was as obvious for the Court as it was for

Father.” Id. at 16. Stated simply, after hearing the relevant evidence, the

trial court concluded that Father failed to establish any contemptuous

behavior. It reasoned that any harm related to Mother’s presumed failure to

return all of Father’s telephone messages promptly was de minimus.

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Additionally, the court determined that under the circumstances presented in

this case, Father’s incessant telephone calls during Mother’s custodial

periods was tantamount to harassment. Father failed to refute the trial

court’s finding.

Father’s final substantive issue relative to the March 25, 2015 custody

order is that the court erred in discounting his evidence and crediting

Mother’s uncorroborated evidence. This assertion correlates with the

seventh contention leveled in Father’s brief. In its entirety, Father levels the

following argument:

It is clear [by] the dramatic changes between the Custody Order the parties walked in with and the Custody Order that was handed down by the Trail [sic] Court that [Mother’s] testimony was deemed creditable [sic] without supporting evidence. Were as [sic] [Father] provided amble [sic] evidence to the contrary of [Mother] and . . . [her] [w]itnesses’ testimony. In doing so, the Trial [sic] Court abused it’s [sic] discretions [sic], making visible it’s [sic] bias in the proceedings. Pa. § 33 Rule 2.3 a&b.

Father’s brief at 13.

This assertion fails for at least two reasons. First, the claim is woefully

underdeveloped and without reference to relevant legal authority beyond the

unintelligible reference to Rule 2.3. Hence, it is waived. In re W.H., supra

at 339 n.3. Second, as previously noted, the trial court did not share

Father’s apparent perspective that the evidence he presented was obvious

and indisputable. Father’s argument ignores our well-ensconced deference

for the trial court’s role as the ultimate arbiter of fact and its credibility

determinations. S.W.D., supra. Plainly, we will not reweigh Father’s

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evidence in order to reach a more favorable conclusion. For either of these

reasons, Father’s claim fails.

Next, we address the issues raised in Father’s appeal, designated as

391 WDA 2015, from the February 13, 2015 discovery order prohibiting him

from serving subpoenas without leave of court and ordering him to pay

Mother’s counsel fees associated with challenging the twenty-three

subpoenas that he filed in this matter. No relief is due.

The following facts are relevant to our review. Prior to the February

18, 2015 custody trial, Father served twenty-three subpoenas on various

colleges, school districts, and financial service companies demanding the

production of documents and discovery relating to Mother.4 Father

neglected to obtain leave of court to conduct discovery and he failed to serve

Mother with notice of his intent to engage discovery or provide copies of the

discovery requests. Mother objected to the barrage of discovery requests

pursuant to Pa.R.C.P. 4009.21 (c), and filed a motion for a protective order

seeking to preclude Father from continuing his behavior. She alleged that

Father misused the court’s subpoena powers for illegitimate reasons and to ____________________________________________

4 Other than one subpoena that inquired about Mother’s correspondence with J.R., Jr.’s school district, all of the remaining subpoenas directed the recipients to produce Mother’s personal information regarding her education transcripts, applications for admissions, financial aid assistance, employment, and mortgage applications. Father has never proffered an explanation as to how the bulk of his discovery request was relevant to the underlying dispute with Mother regarding which parent should exercise legal custody.

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request information that was irrelevant to the underlying custody

determination. She entreated the trial court to issue a protective order

preventing Father from engaging in further misuse of the subpoena process

and she sought reimbursement of her counsel fees pursuant to § 5339 of the

Child Custody Law.

Although Father filed a response to Mother’s motion, he neglected to

appear during the ensuing hearing. On February 13, 2015, the trial court

granted Mother’s motion for a protective order and awarded counsel fees

totaling $2,290.75. The trial court determined that Father ignored the rules

of civil procedure both by circumventing the deterrence of discovery in

custody matters without leave of the trial court and by failing to provide

Mother with notice of his intention to file the subpoenas upon the twenty-

three recipients. In reaching its decision, the court stressed that in

attempting to collect personal information about Mother that was irrelevant

to the custody dispute, Father ignored the procedural orders that were

“designed to prevent this very situation form occurring.” Trial Court Opinion,

5/29/15, at 5. The trial court further reasoned that counsel fees were

warranted in this case due to Father’s conduct and concluded that Mother

established the costs that she incurred attempting to undo the harm caused

by Father’s vexatious behavior. Id.

On appeal, Father asserts five separate issues and supports each with

arguments of varying degrees of lucidity. Most of Father’s arguments are

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composed of two or three conclusory sentences that either 1) assail the trial

court’s civility and professional integrity; or 2) challenge the court’s decision

to hold the hearing in his absence. None of Father’s five enumerated

arguments challenges the trial court’s findings of fact regarding his conduct

or its conclusion that the service of approximately two dozen subpoenas was

in bad faith and tantamount to obdurate and vexations conduct.

From what we can ascertain from Father’s meager arguments and the

summary of argument section of his brief, Father contends that he was not

able to attend the February 3, 2015 hearing due to his long-planned travel

commitment that he was not willing to alter. Father continues that he

advised the trial court of the scheduling conflict in his response to Mother’s

motion for special relief and that he anticipated that the trial court would

extend to him the same courtesy that it had extended to Mother to

accommodate her scheduling conflicts in the past.

Substantively, Father does not contest the finding that he served the

subpoenas on the various institutions in violation of the rules of civil

procedure. However, as it relates to the notice issue, he maintains that he

mailed to Mother the required notices and copies of the subpoenas but that

the documents were returned to him undeliverable. In this regard, he posits

that the trial court ignored his efforts to comply with the procedural rules in

fashioning the protective order and award of attorney’s fees. For the

following reasons, Father’s claim is unpersuasive.

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Pursuant to both Pa.R.C.P. 1930.5 relating to discovery in domestic

relations matters generally and Pa.R.C.P. 1915.5(c) concerning custody

proceedings specifically, discovery is not permitted in custody matters

absent leave of court. The general rule provides, “There shall be no

discovery in a simple support, custody or Protection from Abuse proceeding

unless authorized by order of court.” Pa.R.C.P. 1930.5. Likewise, the

provision included in the portion of the rules concerning custody matters

reiterates, “The shall be no discovery unless authorized by special order of

court.” Id.

Instantly, it is beyond peradventure that Father violated the rules

restricting discovery in custody cases absent the trial court’s express

authorization. See Pa.R.C.P. 1915.5(c) and 1930.5. Moreover, it is equally

clear from the procedural history that Father failed to serve Mother copies of

the subpoenas pursuant to Pa.R.C.P. 4009.21 or provide her the required

twenty-day notice to object. While Father professes to have mailed the

documents, upon their return to him unclaimed, he had actual knowledge

that Mother was not served. Rather than attempt to perfect service of the

notice of the unsanctioned subpoenas, Father proceeded unilaterally and

served approximately two dozen subpoenas on various educational and

financial institutions seeking Mother’s private information. As the record

supports the court’s determination that Father disregarded the Pennsylvania

Rules of Civil Procedure in serving the twenty-three subpoenas to institutions

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that were not involved in his custody dispute with Mother, we will not disturb

the trial court’s interlocutory discovery order that precluded Father from

issuing subpoenas without its specific authorization and awarding Mother

$2,290.75 in attorney fees.

Thus, for all of the foregoing reasons, we affirm the February 13, 2015

award of counsel fees and the March 25, 2015 order granting Mother and

Father shared physical custody and shared legal custody of their son.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/2015

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