J-A13029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.G. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
E.D.
Appellee No. 2982 EDA 2013
Appeal from the Order entered September 27, 2013 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2011-05320
K.G. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
Appellant No. 3128 EDA 2013
Appeal from the Order entered September 27, 2013 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2011-05320
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 30, 2014
Cross-Appellants, K.G. (Mother) and E.D. (Father), both appeal from
the September 27, 2013 order granting them shared legal and physical ____________________________________________
* Former Justice specially assigned to the Superior Court. J-A13029-14
custody of their daughter, G.D. After thorough review, we reverse and
remand for further proceedings.1
We summarize the relevant factual and procedural history of this case
as follows. In September 2009, Mother and Father met on the dating
website Match.com. Trial Court Opinion, 11/27/13, at 4. At the time the
parties met, Father’s marital status was listed as divorced in his site profile.
Id. at 4, 8-9. Despite this listing, Father was in fact married to M.D. (Wife).
Id. at 4-5, 9. Mother and Father began dating in September 2009. Id. at
9. In the spring of 2010, Mother became pregnant with G.D., who was
subsequently born in December of 2010. Id. at 5, 9. Father’s name was
not listed on G.D.’s birth certificate. Id. at 5-6.
In late-January 2011, Mother signed adoption paperwork prepared by
Father’s attorney. Id. at 6, 8, 10. In doing so, Mother executed her
consent to the adoption of G.D. by Father and Wife. Id. at 8, 10-11. Father
subsequently obtained physical custody of G.D. from Mother on February 27,
2011. Id. at 7, 11.
On March 2, 2011, Father and Wife filed a petition to confirm Mother’s
consent to G.D.’s adoption and a petition for Wife’s adoption of G.D. On ____________________________________________
1 By unpublished memorandum, on August 15, 2014, this Court remanded this matter and retained jurisdiction for the trial court to file a supplemental opinion, addressing its factual determinations underlying its entire custody finding. See K.G. v. E.D., --- A.3d --- (Pa. Super. 2014) (unpublished memorandum). The trial court filed its supplemental opinion with this Court on September 26, 2014.
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March 7, 2011, Mother filed a pro se petition to revoke her consent to G.D.’s
adoption. Mother alleged she executed this consent due to the fraud and/or
duress of Father. See Trial Court Opinion, 11/27/13, at 2; Mother’s
Complaint for Emergency Custody, 3/7/11, at ¶ 7. Also on March 7, 2011,
Mother filed a pro se emergency custody petition. Within this filing, Mother
alleged G.D. was living in Maryland with Father and Wife, and that Father
was denying Mother contact with G.D. Mother’s Complaint for Emergency
Custody, 3/7/11, at ¶ 7. Father subsequently filed a motion to stay the
custody action pending the outcome of the adoption action, which the trial
court granted on March 25, 2011.
On May 27, 2011, the trial court issued an agreed-upon temporary
custody order. This temporary order granted Father primary physical
custody of G.D. and Mother partial physical custody of G.D. on alternating
weekends. Trial Court Opinion, 11/27/13, at 2; Temporary Order, 5/26/11,
at 2-5. This order was to remain in effect until the conclusion of the
orphans’ court action. Temporary Order, 5/26/11, at 4-5.
Following a four-day hearing, the orphans’ court granted Mother’s
petition to revoke her consent to G.D.’s adoption on or around October 12,
2011. The orphans’ court concluded the consent had been procured by
fraud and duress. See Trial Court Opinion, 11/27/13, at 2. The orphans’
court dismissed, with prejudice, Father and Wife’s petition to confirm
consent and petition for adoption. Id. at 2-3. By a separate order, the
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orphans’ court directed the May 27, 2011 temporary custody order to remain
in full force and effect pending further order of court. Trial Court Order,
10/13/11.
Father and Wife appealed the orphans’ court order to this Court. See
In re Adoption of G.D., 50 A.3d 245 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 53 A.3d 51 (Pa. 2012). Due to the pending
appeal, the trial court stayed all further custody proceedings by order dated
December 14, 2011. The trial court directed that the May 27, 2011
temporary custody order would remain in full force and effect during the
pendency of Father and Wife’s appeal.
While awaiting our disposition of that appeal, Father filed two
emergency petitions seeking an order enjoining Mother from disclosing the
details of the custody and orphans’ court litigations. Father’s Emergency
Petition to Enjoin, 1/24/12; Father’s Emergency Petition to Enjoin, 2/16/12.
Mother also filed an emergency petition to correct and/or clarify the order of
court and for appointment of Guardian Ad Litem (GAL). Mother requested
that the temporary order be corrected to grant her shared legal custody.
Mother’s Emergency Petition, 4/25/12, at 4.2
By memorandum filed on May 18, 2012, this Court affirmed the
October 12, 2011 orphans’ court order. See G.D., supra. On June 12, ____________________________________________
2 We note that Mother’s petition does not contain pagination. Therefore, we have assigned each page a sequential page number for ease of reference.
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2012, Mother filed a petition to lift the stay in the custody action and for an
immediate hearing. However, Father and Wife filed a petition for allowance
of appeal with our Supreme Court on June 18, 2012. Id. Our Supreme
Court denied that petition on July 17, 2012. Id.
Following a conference on Mother’s emergency petition to correct
and/or clarify the custody order, the trial court granted Mother and Father
shared legal custody on July 31, 2012. Trial Court Order, 7/31/12, at ¶ 1.
The trial court subsequently listed this matter for trial. Trial Court Order,
8/2/12 at 1. The trial commenced on March 25, 2013, and continued
through March 26, April 25-26, June 3-5 and 10-11, August 5, 7, 9, and 12-
14, 2013. At trial, Mother and Father’s testimony differed significantly. See
Trial Court Opinion, 11/27/13, at 4-11.
Following this protracted custody proceeding, the trial court granted
Mother and Father shared legal and physical custody on an alternating
weekly basis. Trial Court Order, 9/27/13, at 8. The trial court directed
Mother and Father to attend co-parenting counseling “until such time as the
counselor deems it no longer necessary, or, until further order of the Court.”
Id. at 10. By this order, the trial court also denied Father’s petitions to
enjoin Mother from disclosing the details of the orphans’ court litigation and
the custody matter on the Internet, to the media, or to any other third
party. Id. at 11.
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On October 24, 2013, Mother filed a timely notice of appeal. Mother
failed to file a concise statement of errors complained of on appeal with this
notice. See Pa.R.A.P. 1925(a)(2)(i) (providing that a concise statement of
matters complained of on appeal shall accompany a notice of appeal in a
children’s fast track case). On October 29, 2013, the trial court directed
Mother to file her concise statement within twenty-one days; Mother timely
complied with that order. Because no party claims prejudice resulted from
Mother’s failure to file a concise statement with her notice of appeal and
because Mother timely complied with the trial court’s order, we will not
quash or dismiss her appeal. See In re K.T.E.L., 983 A.2d 745, 747 (Pa.
Super. 2009) (holding that an appellant’s failure to strictly comply with
Pa.R.A.P. 1925(a)(2)(i) did not warrant an application of the waiver rule, as
no court order had been violated, and there was no prejudice to any party).
On November 7, 2013, Father filed a timely notice of cross-appeal and
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). See Pa.R.A.P. 511 (stating, “[t]he timely filing of an appeal
shall extend the time for any other party to cross appeal”); Pa.R.A.P. 903
(providing, “if a timely notice of appeal is filed by a party, any other party
may file a notice of appeal within 14 days of the date on which the first
notice of appeal was served[ ]”). The trial court subsequently filed its Rule
1925(a) opinion on November 27, 2013. Following remand by this Court,
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the trial court filed its supplemental opinion on September 26, 2014. See
K.G. v. E.D., --- A.3d --- (Pa. Super. 2014) (unpublished memorandum).
On appeal, Mother raises the following issue for our review.
[I.] Should the child custody order appealed from be reversed where the statutory factors in 23 Pa.C.S.[A.] § 5328[(a)] do not support the custody determination, and the trial court’s findings of fact and conclusions of law are unsupported by the record?
Mother’s Brief at 3. Additionally, Father raises the following three issues for
our review.
I. Should the [c]hild custody order appealed from be reversed where the statutory factors in 23 Pa.C.S.[A.] § 5328[(a)] do not support the custody determination by the [t]rial [c]ourt, and the [t]rial [c]ourt’s findings of fact and conclusions of law are unsupported by the record[?]
II. Should the [c]hild custody order appealed from be reversed when the [t]rial [c]ourt committed prejudicial error in excluding evidence offered by [Father] concerning Mother’s son and how Mother raised and cared for her son[?]
III. Should the [c]hild custody order appealed from be reversed when the [t]rial [c]ourt abused its discretion in failing to enjoin Mother from disclosing the details of the [a]doption and [c]ustody matters on the [I]nternet, to the media or to any person or entity not associated with the [c]ustody or [a]doption matters[?]
Father’s Brief at 1.
The scope and standard of our review in custody matters is as follows.
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[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 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,
[O]n 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) (parallel citations
omitted).
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The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902
A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,
677 (Pa. Super. 2004).
Instantly, because the custody trial commenced in March 2013, the
Child Custody Act (Act), 23 Pa.C.S. §§ 5321–5340, is applicable. See
C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the
custody evidentiary proceeding commences on or after the effective date of
the Act, i.e., January 24, 2011, the provisions of the Act apply). Section
5328 of the Act provides an enumerated list of factors a trial court must
consider in determining the best interests of a child when awarding any form
of custody.
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the 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 following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s
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household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child- care arrangements.
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(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a)(1)-(16).3
This Court has stated that, “[a]ll of the factors listed in section
5328(a) are required to be considered by the trial court when entering a
custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)
(emphasis in original).
[In addition,] Section 5323(d) provides that a trial court “shall delineate the reasons for its decision on the record in open court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen [Section 5328 custody] factors prior to the deadline by which a litigant must file a notice of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013).
____________________________________________
3 The Act was amended, effective January 1, 2014, to include an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child abuse and involvement with child protective services).
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A.V., supra at 822-823. With these standards in mind, we turn to the
merits of this appeal.
Mother argues that the trial court abused its discretion by not granting
her sole legal and primary physical custody of G.D. Mother’s Brief at 51.
The crux of her argument is that the trial court failed to properly consider
and apply the evidence involving Father’s act of fraudulently procuring the
adoption consent in fashioning its custody order. Father similarly argues
that the trial court erred and abused its discretion by not granting him sole
legal and primary physical custody of G.D. Father’s Brief at 48-49, 54. Both
parties contend that the trial court’s conclusions of law lack support within
its factual findings and that the trial court did not properly apply the Section
5328(a) factors. Mother’s Brief at 51; Father’s Brief at 54. Specifically,
Mother contests the trial court’s conclusions as to Section 5328(a)(1), (2),
(8), (11), and (13), while Father contests the conclusions as to Section
5328(a)(1), (2), (3), (4), (8), (10), (11), and (13). Mother’s Brief at 52-59;
Father’s Brief at 54-63.
Upon agreement of the parties, the trial court admitted into evidence
the orphans’ court order granting Mother’s petition to revoke her consent to
G.D.’s adoption, this Court’s memorandum affirming the order, and our
Supreme Court’s denial of Father’s petition for allowance of appeal. N.T.,
3/25/13, at 8-9, 11. In addition to this documentary evidence, Mother and
Father testified with respect to the procurement of the adoption consent and
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the way Father came to exercise sole physical custody of G.D. from February
27, 2011 until the May 27, 2011 temporary order, and sole legal custody
until the July 31, 2012 temporary order. The trial court aptly set forth
Mother’s and Father’s testimony, which differed significantly, in its November
27, 2013 Rule 1925(a) opinion, and we adopt it herein. See Trial Court
Opinion, 11/27/13, at 4-11. Notably, Father testified he does not agree with
the orphans’ court finding that he fraudulently procured the adoption
consent. He stated, “I don’t agree with it, but I am abiding by it.” N.T.,
6/5/13, at 176.
With respect to Mother’s argument that the trial court failed to
properly consider and apply the evidence involving Father’s act of
fraudulently procuring the adoption consent in fashioning its custody order,
the trial court responded that it considered the above-described
documentary evidence, but failed to find the evidence relevant to its best
interest analysis pursuant to Section 5328(a). Trial Court Opinion,
11/27/13, at 16-18; Trial Court Opinion, 9/26/14, at 2-3. The trial court
reasoned that it “is not in a position to ‘redress’ any purported wrongs which
[the orphans’ court] found had occurred in the procurement of the adoption
consent.” Trial Court Opinion, 11/27/13, at 18. Rather, the trial court
explained that it “strictly limited” its determination “to a custodial
arrangement which would be in the best interest of the child … .” Id.; Trial
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Court Opinion, 9/26/14, at 3. Upon thorough review, we are constrained to
conclude that the trial court abused its discretion.
In addressing Section 5328(a)(10), which states the trial court must
consider “[w]hich party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the child[,]” the
trial court found that Mother’s “limited involvement in the child’s life is [not]
indicative in any way that she is less likely to attend” to G.D.’s needs. Trial
Court Opinion, 9/26/14, at 13. Significantly, the trial court based this
finding on “the circumstances of how [ ] Father came to be in the position of
being the primary caretaker, specifically, based on a consent to adopt which
was later found to be fraudulently obtained by [ ] Father.” Id. Further, the
trial court rejected as not credible all of Father’s testimony alleging that
Mother is incapable of providing for G.D.’s daily needs. Id. at 13-14.
Nevertheless, the trial court failed to apply the evidence of Father’s
fraudulent procurement of the adoption consent to its analysis of Section
5328(a)(1), which looks at which party is more likely to encourage and
permit frequent and continuing contact between the child and another party.
Further, the trial court failed to properly apply the evidence that Father
exercised sole physical custody from February 27, 2011, to May 27, 2011,
without Mother’s consent.
In its September 26, 2014 supplemental opinion, the trial court
acknowledged that Father “unilaterally limit[ed]” Mother’s contact with G.D.
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from February 27, 2011, until the May 27, 2011 temporary physical custody
order. Trial Court Opinion, 9/26/14, at 5. However, the trial court excused
Father’s action because the orphans’ court “had not yet rendered a decision
on the accompanying adoption matter at that time, and based on the
Consent to Adopt signed by both parents, [ ] Father had full legal and
physical custody of the child until the May 2[7], 2011 agreed order was
issued.” Id. at 6. Therefore, the trial court found Father’s action of limiting
Mother’s contact with G.D. was “not indicative that [he] is incapable of
permitting and encouraging frequent contact between the child and [ ]
Mother to a degree which would permit the court to deny him shared
physical custody of the child.” Id. The trial court determined that both
parties have demonstrated they are able to permit and encourage frequent
and continuing contact. Order, 9/27/13, at 3.
We conclude the trial court abused its discretion in excusing Father’s
behavior in unilaterally limiting Mother’s contact with G.D. in light of the
competent record evidence that Father fraudulently procured the adoption
consent that resulted in the orphans’ court litigation. As such, we hold as
unreasonable the trial court’s conclusion that Father is able to permit and
encourage frequent and continuing contact between G.D. and Mother.
Additionally, we conclude the trial court abused its discretion to the
extent it based its conclusion under Section 5328(a)(1) on Mother having
consistently exercised partial custody on alternating weekends pursuant to
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the May 27, 2011 temporary order. The competent record evidence reveals
that the May 27, 2011 temporary physical custody order, as well as the July
31, 2012 temporary legal custody order, resulted from the trial court’s
intervention, at Mother’s request, for her custody rights. Moreover, although
Mother exercised her partial physical custody consistently since the
temporary order was entered, conflict and chaos has dominated the parties’
dealings, including at the time of custody exchanges. Mother aptly
summarized the extensive testimonial evidence in this regard as follows.
Father and [Wife] did everything in their power to ensure that Mother received only the bare minimum amount of visitation directed by the court, including obstructing the [custody] exchanges with frivolous requests, withholding medical information, failing to provide clothing for the child, … refusing additional visitation even when they were too ill or occupied to care for G.D. and were frequently using daycare, videotaping and shouting [during] the [custody] exchanges ….
…
Father admitted to hiring private investigators to follow Mother, [her boyfriend], and other people Mother knows. He acknowledged that he allowed his sister … to use information he provided to attack Mother on the [I]nternet ….
Father testified that he does not consult Mother on G.D.’s school, church, activities, or relocation, and that they fight and do not get along when it comes to G.D., although he claims that he wants to co- parent with Mother. Mother confirm[ed] Father’s lack of communication on these issues. Father and [Wife] claimed that Mother consented to [their]
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relocation to Delaware, but disregarded their move to Maryland in early 2011, claiming simply that Mother knew they had a house there. Father and [Wife] accuse Mother of bad parenting, and claim that she does not show any interest in G.D. [Wife] … called Mother a prostitute, accused her of having STD’s, accused her of engaging in drugs, lesbian sex, and threesomes, and claimed that she had sex with old men and men at the massage parlor,[4] making these accusations at least once in front of [Mother’s boyfriend] and the children,[5] as well as on the Internet.
Mother’s Brief at 24, 33, 38 (internal citations omitted).
Our review of the testimonial evidence confirms the above summary
and reveals Father and Wife’s animosity toward Mother throughout the
underlying custody proceedings and trial. The relationship between the
parties is so acrimonious that, in the July 31, 2012 temporary order granting
Mother shared legal custody, the trial court directed that neither Mother,
Father, nor Wife “were to participate in the exchange of the custody of the
child. Third party designees were to exchange the child inside the police
4 Mother testified that, in approximately 2009, she worked at a massage parlor that required her to conduct topless massages. Mother quit the job but subsequently returned to it because she needed work. She last worked at the massage parlor in January of 2010, nearly one year before G.D.’s birth, and she has not returned. See Mother’s brief, at 10; see also N.T., 3/25/13, at 24-27; N.T., 6/4/13, at 8. Mother testified that, for the last three years, she has been employed at a motel as an accounting manager. N.T., 3/25/13, at 27. 5 In addition to G.D., Mother has one son from a prior relationship, who was age seven at the time the custody trial commenced. Mother has sole custody of her son.
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stations in Whitemarsh Township, [in Montgomery County, Pennsylvania]
and Odessa, Delaware.” Trial Court Opinion, 11/27/13, at 3. The trial court
ordered that Mother, Father, and Wife “shall remain in their vehicles at all
times during the exchange of custody.” Trial Court Order, 7/31/12 at 1.
Further, the trial court ordered that there “shall be no videotaping of the
exchange of custody of the Child inside either police station.” Id. at 1.
Mother testified that, prior to the July 31, 2012 temporary order, Father and
Wife videotaped the custody exchanges. Specifically, Mother testified as
follows.
Q. Now, you received an Order, July 3[1], 2012, that indicated there would be no videotaping at the exchanges. Has videotaping continued?
A. It has, but they’re in their car videotaping. [The order] says that there’s no videotaping … in the police station[.] So, the way around it is to videotape from the car. So they would videotape – I could see the videotape camera in their car, videotaping the exchanges. Through the window.
N.T., 3/25/13, at 251.
Moreover, Father continues to deny that he fraudulently procured the
adoption consent from Mother, and that he unilaterally limited Mother’s
contact with G.D. Even a review of Father’s brief to this Court demonstrates
the contention and hostility that exist, with Father arguing that Mother is the
one who is incapable of permitting frequent and continuing contact between
G.D. and him, and that he should be awarded primary physical custody,
although the record is devoid of any evidence favoring him in this regard.
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Father’s Brief at 54-56. Based on the foregoing, we hold the trial court’s
findings with respect to Section 5328(a)(1) are not supported by the
competent record evidence, and its conclusions are unreasonable.
With respect to Section 5328(a)(8), which looks at the attempts of a
parent to turn the child against the other parent, the trial court found “no
credible evidence that either parent has attempted to turn the child against
the other parent.” Order, 9/27/13, at 4. To the contrary, Mother argues the
following.
Father and [Wife] may not be engaged in overt, active attempts to turn G.D. against Mother, but they are engaged in a far more sinister and subtle method of doing so; isolation. They are acting to keep G.D. from Mother, so that she forgets Mother, comes to view her as a stranger, and on her own becomes less comfortable with Mother. But for the court order in place to thwart them[,] it is certain [Father and Wife] would be far more aggressive in their efforts to keep Mother from G.D.
Mother’s Brief at 57.
On February 27, 2011, when Father first started to limit Mother’s
contact with G.D., G.D. was an infant of two months. Mother testified that,
after she filed the petition to revoke the adoption consent, but before the
hearing in that matter, the orphans’ court and counsel for the parties agreed
Mother should have visitation with G.D. N.T., 3/25/13, at 131. Mother
testified that Father would only agree to visits between Mother and G.D. if
he supervised them, and two such visits occurred in May of 2011. Id. at
131-132. During the second supervised visit, while Mother was holding G.D.
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on her lap, Mother testified that Father stated to her, “I would like to work
something out …. Let my wife adopt your baby.” Id. at 137. Mother
testified that when she refused, Father became angry, and tried to pry G.D.
from her arms. Id. at 138. She went on to testify that Father was holding
her down on the chair and that he was in her face yelling and threatening to
“blackmail” her about her past employment. Id. at 138. The altercation
became so heated that Wife came into the room and removed G.D. from the
middle of the situation. Id. at 139. Father then physically pushed Mother
out the door of the house while continuing to scream after her. Id.
As a result of this incident, Mother filed a Protection From Abuse (PFA)
petition on May 16, 2011, and the trial court issued a temporary PFA order
granting her full custody of G.D. Mother testified Father was never served
with that order, and, therefore, she did not obtain temporary custody of
G.D. Id. at 137-139. The PFA hearing occurred on May 26, 2011, and
Mother agreed to settle the PFA dispute with Father by accepting
unsupervised partial physical custody of G.D. on alternating weekends. Id.
at 157. Thus, the agreed upon May 27, 2011 temporary physical custody
order was issued under these circumstances.
As such, from the time G.D. was five months old through the custody
trial, at which time G.D. was two years old, G.D. has been in Mother’s
physical custody only on alternating weekends, while Father and Wife have
been her primary caretakers. Despite Mother’s requests for additional
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custody time on holidays and at other specific times, Father has never
agreed to any time beyond what was granted to Mother in the May 27, 2011
temporary order. N.T., 3/25/13, at 171-172, 176-178. We conclude that,
for the first two years of G.D.’s life, Father succeeded in deliberately
isolating G.D. from Mother. This inevitably caused any bond and
relationship, which this small child is entitled to have with her Mother, to
suffer. This naturally manifested in G.D. favoring Father as the more
familiar parent. Therefore, we are constrained to conclude that the
competent record evidence does not support the trial court’s finding under
Section 5328(a)(8) that neither parent has attempted to turn the child
against the other parent.
With respect to Section 5328(a)(11), the proximity of the residences
of the parties, there is no dispute that the parties live a driving distance of
approximately one and a half hours.6 The trial court acknowledged that the
parties do not live in close proximity to each other and that this may present
an obstacle, but concluded that this factor does not outweigh “the benefits of
the importance of a shared physical custody for the child’s best interests.”
Trial Court Opinion, 9/26/14, at 16. We hold the trial court’s conclusion
unreasonable because it requires G.D., then age two, to undergo a three-
hour roundtrip car ride each week between homes. ____________________________________________
6 Mother resides in Plymouth Meeting, in Montgomery County, and Father resides in the State of Maryland.
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Based on the foregoing, we conclude the trial court abused its
discretion in failing to weigh Section 5328(a)(1), (8), and (11) in Mother’s
favor. Moreover, to the extent the trial court based its custody decision
upon the presumption that a shared physical custody arrangement is in
G.D.’s best interest, we conclude that it committed an error of law.
[C]ourts may no longer reason by presumption in child custody cases. Not only has the tender years presumption been explicitly repudiated, but so have all other presumptions. In a custody dispute between parents, no one has the burden of proof; no presumption may be resorted to; instead, the court must determine according to the evidence in the particular case before it what will serve the children’s best interests.
In re Custody of Temos, 450 A.2d 111, 121-122 (Pa. Super. 1982)
(citations omitted).
Upon thorough review, we conclude the competent evidence of record
does not support a shared physical custody award. Accordingly, we reverse
the order with regard to the award of shared physical custody, and direct
that Mother shall have primary physical custody of G.D. See M.A.T. v.
G.S.T., 989 A.2d 11, 21 (Pa. Super. 2010) (en banc) (stating that, where
the record is sufficiently developed, we may substitute our judgment for that
of the trial court and decide the case on the merits).
Based on the foregoing, we likewise conclude that the trial court
abused its discretion in granting the parties shared legal custody. The Act
defines “legal custody” as “[t]he right to make major decisions on behalf of
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the child, including, but not limited to, medical, religious and educational
decisions.” 23 Pa.C.S.A. § 5322. Section 5328(a)(13) addresses the level
of conflict between the parties and the willingness and ability of the parties
to cooperate with one another. In this case, the trial court found “there is a
level of conflict between the parties.” Trial Court Order, 9/27/13, at 6.
Specifically, the trial court stated as follows.
[The trial court] has concerns as to the level and quality of communication between Mother and Father, however, the [trial c]ourt does not find these concerns significant enough to bar a shared custody arrangement as both parties have demonstrated a willingness and ability to communicate in promoting the child’s best interests ….
Id. at 7.
Upon review, we conclude that the competent evidence of record does
not support the trial court’s finding that the legitimate concerns about the
level and quality of the parties’ communication are not significant enough to
bar a shared custody arrangement. In the trial court’s September 26, 2014
supplemental opinion, it reasoned, in part, “with the assistance of co-parent
counseling, both parents should be able to learn to communicate more
effectively for the best interests of the child.” Trial Court Opinion, 9/26/14,
at 18. We disagree based on the record evidence. Indeed, Mother testified
that she and Father “do not communicate at all.” N.T., 3/25/13, at 218.
Rather, Mother testified she believes it is Wife who corresponds with her in
e-mails regarding G.D. Id.
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We conclude it is in G.D.’s best interest to grant Mother sole legal
custody until such time that the situation between the parties were to
improve. Accordingly, we reverse the order with regard to the award of
shared legal custody, and direct that Mother shall have sole legal custody of
G.D. See M.A.T., supra.
Mother also requests this Court to award her counsel fees and costs
associated with the instant appeal, such as this Court awarded her in
connection with Father’s appeal from the orphans’ court order. See
Adoption of G.D., supra. In support of her request, Mother sets forth the
following argument.
Father and [Wife] engaged in the same misconduct here – indeed, they even continue to give the same statements and testimony already adjudicated as perjury in the Orphans’ Court case – as they did in the prior proceeding. This Court has already determined that Father’s prior misconduct warranted an award of fees. His persistent engagement in that same misconduct in this case warrants the same result. They had 12 witnesses (Mother had 6) and managed to drag out this custody case for over 14 days, as the record will reflect, as well as filed numerous petitions.
Mother’s Brief at 60-61.
Pennsylvania Rule of Appellate Procedure 2744 provides as follows.
Rule 2744. Further Costs. Counsel Fees. Damages for Delay
In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including
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(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per annum in addition to legal interest,
if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule.
… Pa.R.A.P. 2744.
Further, this Court has explained our standard of review.
In determining the propriety of such an award, we are ever guided by the principle that an appeal is not frivolous simply because it lacks merit. Rather, it must be found that the appeal has no basis in law or fact. This high standard is imposed in order to avoid discouraging litigants from bringing appeals for fear of being wrongfully sanctioned.
Griffith v. Kirsch, 886 A.2d 249, 255-256 (Pa. Super. 2005), quoting
Menna v. St. Agnes Med. Ctr., 690 A.2d 299, 304 (Pa. Super. 1997)
In this appeal, we discern no basis to award Mother reasonable
attorney fees and costs where Mother filed an appeal from the custody
order, and Father filed a cross-appeal. Father’s cross-appeal is not frivolous
or taken solely for delay. Although a panel of this Court deemed Father’s
conduct in the orphans’ court litigation to be “dilatory, obdurate, or
vexatious,” we are not persuaded Father’s conduct rises to the same level
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here where both he and Mother are dissatisfied with the custody order and
filed appeals. Therefore, we deny Mother’s request for reasonable attorney
fees and costs.
With respect to Father’s cross-appeal, we observe that the trial court
thoroughly analyzed his issues in its November 27, 2013 Rule 1925(a)
opinion. In his first issue, Father argues the trial court abused its discretion
in failing to weigh the foregoing statutory factors in his favor. Specifically,
Father alleges that Mother has failed to communicate with him regarding
G.D., that she has made the custody exchanges chaotic, and that she has
filed false abuse charges against him. Father alleges that G.D. has returned
from Mother’s custodial weekends with injuries, including “excessive
bruising, a bump on her head[,] and a black eye. Something happened
almost every weekend Mother had [G.D.].” Father’s Brief at 56. In addition,
Father alleges that Mother failed to provide the necessary care for G.D. while
in her custody, and that G.D. “would return from Mother’s weekends with
behavior issues.” Id. at 57.
The trial court concluded that all of Father’s allegations were misplaced
and/or not credible and not supported by the evidence. We conclude the
record evidence overwhelmingly supports the trial court’s analysis of
Father’s first issue on appeal. Thus, we discern no abuse of discretion. As
such, we adopt the trial court’s November 27, 2013 Rule 1925(a) opinion as
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dispositive of Father’s first issue. See Trial Court Opinion, 11/27/13, at 25-
36.
In his second issue, Father argues the trial court committed an error of
law by precluding testimony regarding Mother’s care of J.G., her then seven-
year-old son from a prior relationship, who is G.D.’s half-brother. Father
argues this testimony was relevant to the trial court’s consideration of
Section 5328(a)(3), (4), (9), (10), and (12).
When faced with a question of the admissibility of evidence, our
standard of review is very narrow. Because this decision is committed to the
discretion of the trial court, we may reverse only upon a showing of an
abuse of discretion or error of law. Freed v. Geisinger Med. Ctr., 910
A.2d 68, 72 (Pa. Super. 2006). “[T]o constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.” Id.
In its November 27, 2013 Rule 1925(a) opinion, the trial court stated
that Mother “testified as to G.D.’s sibling relationship with J.G., the childcare
arrangements she has made for her son, his schooling, his relationship with
her family, and his lack of contact with the biological [f]ather.” Trial Court
Opinion, 11/27/13, at 24. Otherwise, the trial court stated “there was no
proffer of any relevant information as to J.G. which the court should have
considered with regard to the best interest of G.D.” Id. at 24-25. We
discern no abuse of the trial court in this regard. Further, Father does not
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state on appeal what additional information regarding J.G., if any, was
relevant to this custody matter. It follows that Father does not assert how
he was prejudiced by the trial court’s preclusion of additional testimonial
evidence regarding J.G. As such, we discern no abuse of discretion or error
of law by the trial court.
In his third issue, Father argues the trial court erred in failing to enjoin
Mother from disclosing the details of the orphans’ court litigation and the
custody matter on the Internet, to the media, or to any other third party.
Father argues it is in the best interest of G.D. to maintain privacy in these
matters, and that G.D.’s privacy trumps Mother’s guarantee of freedom of
speech under the Pennsylvania and United States Constitution.
The trial court set forth the following background with respect to this
issue, which is supported by the testimonial evidence
There was testimony presented at trial that [ ] Mother published the details of her custody dispute with [ ] Father on a website, and, a video presented that she gave interviews to news organizations as well …. [ ] Mother testified that[,] “I wanted the story out there so [G.D.] would know her mother fought for her …[.] I also thought this would help my case.”
Trial Court Opinion, 11/27/13, at 32-33 (citation to record omitted).
Significantly, the trial court noted that, “[t]here was also evidence presented
at trial that [ ] Father’s sister … started a website and also posted
information about the adoption and custody cases, including negative
statements made about [ ] Mother.” Id. at 38. Moreover, Father admitted
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on direct examination that he provided his sister with information posted on
the website. See N.T., 6/5/13, at 194-195. In any event, Mother testified
she does not plan to initiate any additional media coverage. See N.T.,
6/3/13, at 290-291.
Father cites In the Interest of M.B. and J.B., 819 A.2d 59 (Pa.
Super. 2003), in support of his argument that “the privacy rights of the child
are more important than the right of free speech, when failure to protect the
child’s rights would result in harm to the child.” Father’s Brief at 67. In that
case, the Pittsburgh Post-Gazette newspaper appealed from the trial court’s
order denying its motion to open juvenile dependency proceedings. We held
as follows.
[W]hile there is a rebuttable constitutional presumption that juvenile dependency proceedings are open to the public, our courts possess an inherent power to control access to their proceedings and may deny access when appropriate. Once an interested party seeks access, however, the party seeking to keep the proceedings closed may rebut the presumption of openness by demonstrating that: (1) closure serves a compelling governmental interest, and (2) no less restrictive means to serve that interest exists.
In the Interest of M.B. and J.B., supra at 60. We found that “the parties
seeking closure have demonstrated a compelling interest in protecting the
privacy of the minor children and that no less restrictive means than total
closure exists.” Id. As such, we affirmed the order.
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Father’s reliance on In the Interest of M.B. and J.B., is misplaced in
this case which did not involve the press seeking access to the custody
proceedings. Herein, the trial court specifically found that “based on …
Mother’s testimony that no movie deal or further media coverage was
forthcoming, and no evidence to the contrary being submitted by … Father,
the [trial] court did not abuse its discretion in not ‘enjoining’ … Mother from
pursuing what amounts to speculative endeavors.” Trial Court Opinion,
11/27/13, at 38. Therefore, for all the foregoing reasons, Father’s issues
on appeal fail.
Accordingly, we reverse the custody order with regard to the shared
legal and physical custody award. We remand this matter to the trial court
to fashion a new custody order granting Mother sole legal and primary
physical custody, and setting forth a partial physical custody schedule for
Father that is in G.D.’s best interest.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/30/2014
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