J-S18018-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : J.K. : : Appellant : No. 2282 EDA 2020
Appeal from the Order Entered October 28, 2020 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): No. 0C1412299
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 17, 2021
J.K. (Father) appeals pro se1 from the child custody order entered in the
Philadelphia County Court of Common Pleas, granting shared legal and
physical custody of the parties’ child, H.K. (Child). The parties agreed to an
overall custody scheme of “50/50,” but agreed to submit to the trial court the
issues of the particular custody schedule and the school that Child would
attend for first grade. The trial court determined the shared custody would
be a “week on, week off” schedule, and that Child would attend the local school
near M.K. (Mother). Father now presents multiple challenges to the trial
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 According to the trial court, Father is an attorney in Pennsylvania. Trial Ct. Op., 3/8/21, at 2. M.K. (Mother) has also filed a pro se brief in this appeal. J-S18018-21
court’s custody order, evidentiary rulings, and assessment of the child custody
factors under 23 Pa.C.S. § 5328(a). We affirm.
I. Facts & Procedural History
The record reveals that Father and Mother were formerly married. Child
was born in October of 2013 and was seven years old at the time of the
underlying October 2020 order. We note that on February 5, 2016, the trial
court entered a final custody order by agreement of the parties. This order
generally awarded the parties shared physical and legal custody.
The current phase of the custody litigation began in 2017. The record
indicates that Mother raised concerns Father sexually abused Child. The
Philadelphia Department of Human Services investigated and ultimately
deemed the claims unfounded. The parties filed a bevy of pleadings
throughout 2017, including petitions for custody modification and for special
relief, which culminated in a temporary order entered on November 22, 2017.
This temporary order awarded shared legal custody to both parties, primary
physical custody to Father, and supervised partial custody to Mother on
Sunday afternoons.
“Shortly thereafter, the parties entered into an agreement to retain the
services of [a custody evaluator] to perform a custody evaluation.” Trial Ct.
Op. at 6. The parties further agreed the custody evaluation report shall not
be placed in the record. Id.
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The trial court conducted the first two days of the custody hearing on
July 17 and August 20, 2018. The court interviewed Child in camera, Mother
began presenting her case-in-chief, and the August 20th hearing adjourned
during Father’s cross-examination of Mother. The court entered temporary
orders after each day of the hearing, eliminating the supervision of Mother’s
partial physical custody and increasing her custody time. The August 20,
2018, order, generally awarded Mother physical custody every weekend. The
order also designated the pre-K school that Child would attend for the 2018-
19 school year. See Trial Ct. Op. at 8. We note Child would attend the same
school for kindergarten, and that Mother previously worked there. See N.T.,
8/18/20, at 4, 13.
Nine months later, on June 10, 2019, the parties appeared, with
counsel, for the third day of the hearing. At the start of the hearing, Father’s
counsel advised the court that the parties were “pretty close to an agreement,”
with Father “willing to do [a] 50/50 custody” arrangement,” which was the
custody evaluator’s recommendation. N.T., 6/10/19 Vol. I, at 4, 5. The trial
court conducted a second in camera interview of Child while the parties
negotiated an agreement. When the court reconvened, Mother’s counsel
stated they had agreed to “the overall but not the details,” including whether
the custody arrangement would be on a “week on, week off” schedule or a
“two, two five schedule.” Id. at 31. The parties also disagreed about a
schedule for religious holidays. Id. Father explained they agreed to submit
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these issues to the court to decide, as the court had “enough knowledge about
the case.” Id. at 32-33.
Following further discussion, the trial court resolved that the parties
would share physical custody on a “week on, week off” schedule. N.T.,
6/10/19 Vol. I, at 33. Near the conclusion of the hearing, the court asked
Father if he would like “another [hearing] date,” to which he replied, “No.”
Id. at 53. Mother, however, requested “a status date . . . to make sure that
[the parties] agree on a school” for Child, who was then five and a half years
old. See id. Father agreed, “That’s not a bad idea,” and stated there were
some additional, “mostly housekeeping things.” Id. at 54. Pertinent to
Father’s claims on appeal, we note he did not seek to testify or present
evidence at this hearing. Following the hearing, the court entered a
“temporary agreement . . . without prejudice and without findings.” Order,
6/10/19, at 1. The order awarded shared legal custody and alternating weekly
physical custody, with the non-custodial parent having a dinner visit with Child
on Wednesday evenings. A further hearing was scheduled, but it was
cancelled due to the COVID-19 pandemic. N.T., 8/18/20, at 4.
The next activity in this case occurred the following year on June 25,
2020, when Father filed a pro se petition for special relief. Father averred
Child would be entering first grade and the parties each wanted her to attend
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the elementary school in their own school district.2 Father’s petition requested
this issue to be decided by an arbitrator. Mother filed a pro se response and
cross-claim on August 4, 2020, followed by her own pro se petition for special
relief on August 13th.
On August 18, 2020, the trial court convened a virtual hearing to
address Father’s petition. Father was represented by counsel, and Mother
appeared pro se. At this time, Child was six years old. Father’s counsel
waived his request for arbitration and agreed that the court should decide the
school choice issue. N.T., 8/18/20, at 6. Father testified that he and his
partner purchased a home one month earlier in Berwyn, Chester County, in
the Tredyffrin Easttown School District. Id. at 8-9. He sought to introduce a
“Future Ready PA Index Report” for his local elementary school.3 Id. at 10-
11. Father’s counsel had emailed this document to Mother on the morning of
that hearing. Id. at 10. In response to the trial court’s question, Father
acknowledged the document was not authenticated. Id. at 11. The court
then ruled the document was inadmissible hearsay, but permitted Father to
testify as to what he believes about the school district. Id. Father testified
2 The school that Child attended for pre-K and kindergarten only “went up to
kindergarten.” N.T., 8/18/20, at 4.
3 The trial court explains this report “is a Pennsylvania Department of Education index that attempts to show, generally, the average proficiency of a given Pennsylvania school on a variety of subjects.” Trial Ct. Op. at 18.
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about the local Tredyffrin Easttown School District, and stated the elementary
school for his area was excellent. Id. at 12-13. Furthermore, his counsel
acknowledged it was “very comparable” to Mother’s local school. Id. at 44.
Finally, we note Father testified that Mother took Child to school late “at least
a dozen times,” and that he had filed a contempt petition against Mother on
this basis. Id. at 20-21.
Mother testified her local Lower Merion School District was excellent and
that she lived in the catchment area for the Penn Wynne Elementary School.
N.T., 8/18/20, at 28-29. She likewise stated it was comparable to Father’s
school district. Id. at 37. Mother explained that because of the COVID-19
pandemic, she “started a [learning] pod for [the past] school year,” and she
would continue to lead a “pod” for Child and “a few children [Child] had gone
to school with for the last two years.” Id. at 30. Mother has “a teaching
certificate with nine years of teaching experience.” Id. at 31. Mother believed
that permitting Child to stay “in this community with her friends” would benefit
her “in every way possible during this difficult time.” Id. at 29-30. On cross-
examination by Father, Mother testified she was laid off due to the pandemic
and was receiving unemployment compensation, but would receive
compensation for leading the learning pod. Id. at 35. Mother lived with her
boyfriend, who contributed to the monthly rent. Id. at 36. The trial court,
however, sustained Mother’s objection to Father’s question of whether “they
broke[ ] up within the last year for any period of time[.]” Id. at 36.
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With respect to taking Child to school late, Mother explained: it was due
to Child’s weekly court-ordered therapy sessions; Child’s “therapist confirmed
all of those dates;” Father “was fully aware” of this and yet failed to withdraw
his contempt petition as he stated he would; and in any event, Mother dropped
off Child at school “during play,” “before any learning happened.” N.T.,
8/18/20, at 27.
The following day, August 19, 2020, the trial court entered an order,
concluding it was in Child’s best interest to enroll at Penn Wynne, the school
near Mother. On September 2nd, Father filed a counseled motion for
reconsideration, and the court entered an order that same day, scheduling the
motion to be heard at an already pending hearing on the parties’ 2017
modification petitions. Mother filed a pro se response and cross-claim to the
motion on September 9th.
The trial court conducted a virtual hearing on October 28, 2020. Again,
Father was represented by counsel and Mother appeared pro se. Father
attempted to call as a witness “an administrator in the enrollment policy
section of Lower Merion School District,” who would testify about “the
enrollment process and what had occurred” with Child’s enrollment. N.T.,
10/28/20, at 6. Father’s counsel had notified the court and Mother of this
witness one day earlier, but Mother did not see the email until the morning of
the hearing. Id. at 5, 7. The court ruled the witness could not testify,
reasoning: “usually by family court standards[,] a party is to provide notice of
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a witness 10 days in advance; nearly two months had passed since Father’s
September 2, 2020, filing of his reconsideration motion; and Father “waited
too long” to notify Mother the night before the hearing. Id. at 8-9.
However, the court permitted Father to testify to the following: Mother
had not enrolled Child at the Penn Wynne school, but instead in the school
district’s year-long virtual instruction program. N.T., 10/28/20, at 12. Father
disagreed with this decision, and thus contacted the school district, which
informed him that Mother did not in fact live in the catchment area for Penn
Wynne, but instead for the Penn Valley School (that is in the same school
district). Id. at 12, 15. Furthermore, because of the August 19th court order
directing that Child would attend Penn Wynne, the school district “denied”
Mother’s request to enroll Child in the virtual program, but permitted Child to
attend Penn Wynne. Id. At the time of this October 28, 2020, hearing, Child
had attended Penn Wynne for three weeks “in a phased in program,” with a
combination of in-school and at-home virtual instruction. Id. at 22. Mother
testified that she was previously informed by both the school district and her
landlord that her home was located in the Penn Wynne catchment area, and
she was surprised to learn, upon attempting to enroll Child, that she in fact
lived in the Penn Valley catchment area. Id. at 45. We note the trial court
found Mother’s testimony credible. Trial Ct. Op. at 24.
Following the hearing, the trial court entered the underlying final
custody order of October 28, 2020. The court denied Father’s motion for
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reconsideration of the school issue, and found it remained in Child’s best
interest to attend the Penn Wynne School. The order did modify the day of
Mother’s weekday dinner visit with Child, from Wednesdays to Mondays.
Otherwise, the order “is substantially unchanged from the temporary order
entered by agreement of the parties on June 10, 2019.” Trial Ct. Op. at 1.
This order also included an analysis of each of the custody factors enumerated
at 23 Pa.C.S. § 5328(a).
II. Timeliness of Father’s Notice of Appeal
On November 30, 2020, Father filed a pro se notice of appeal, along
with a Pa.R.A.P. 1925(a)(2) concise statement of errors complained of on
appeal.4 We first review the timeliness of this appeal, as “[f]ailure to file a
4 We note that the August 19, 2020, order resolving the parties’ school choice
dispute was interlocutory, as the parties’ 2017 modification petitions remained pending at the time pursuant to the June 10, 2019 order. See Order, 6/10/19, at 2 (“Mother’s petition to modify . . . and Father’s petition to modify . . . shall be relisted . . . upon availability of a new date.”) (unnecessary capitalization omitted); G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996) (“[A] custody order will be considered final and appealable only if it is both: 1) entered after the court has completed its hearings on the merits; and 2) intended by the court to constitute a complete resolution of the custody claims pending between the parties.”).
Thus, the fact that the trial court did not expressly grant reconsideration of that order does not prevent us from reviewing it in this appeal. Once the court entered its final order on October 28, 2020, the August 19, 2020 order, as well as any other interlocutory orders entered in this case, became reviewable. See Franciscus v. Sevdik, 135 A.3d 1092, 1093 n.1 (Pa. Super. 2016) (“We note that once a final, appealable order has been appealed, any prior interlocutory order can be called into question.”).
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timely notice of appeal divests this Court of jurisdiction.” See In re J.M.P.,
863 A.2d 17, 19 (Pa. Super. 2004).
On December 11, 2020, this Court received a letter from the trial court,
suggesting Father’s notice of appeal was untimely because he filed it more
than 30 days after the entry of its order on October 28th.5 See Pa.R.A.P.
903(a) (notice of appeal “shall be filed within 30 days after the entry of the
order from which the appeal is taken”). The court asserted the notice of
appeal was due on Friday, November 27th, but he did not file it until Monday,
November 30th.6 This Court issued a rule to show cause order on January 4,
2021, to which Father failed to respond. Thus, on January 25, 2021, this
Court quashed Father’s appeal.
Father filed an application to reinstate his appeal that same day,
pointing out that November 27, 2020, was the day after Thanksgiving and a
court holiday, and thus he had until Monday, November 30th to file his notice
of appeal. See Pa.R.A.P. 903, note (our Rules of Appellate Procedure
5 “The date of entry of an order in a matter subject to the Pennsylvania Rules
of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b). The trial court docket confirms notice was given on October 28, 2020.
6 The trial court’s letter also suggested we should quash Father’s appeal because he failed to timely pay his filing fees. However, our Rules of Appellate Procedure provide, “Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal[.]” Pa.R.A.P. 902.
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incorporate 1 Pa.C.S. § 1908, “relating to computation of time [and] the
omission of the last day of a time period which falls on Saturday, Sunday or
legal holiday”). This Court agreed and thus reinstated Father’s appeal on
February 9, 2021.
Nevertheless, the trial court continues to maintain that Father’s appeal
is untimely. Trial Ct. Op. at 2. The court asserts Father electronically filed his
notice of appeal, on November 30, 2020, at 5:49 p.m., after the close of
business. The court directs our attention to an exhibit it placed in the record,
a copy of an email from Father that purportedly shows he sent his notice of
appeal at that time. Id. at 2-3.
In his appellate brief, Father responds with his own exhibits, including a
copy of an email purportedly showing he sent his notice of appeal at 12:49
p.m. on November 30, 2020. He also attaches a copy of an email to him on
December 1, 2020, requesting the payment of filing fees, which includes a
forwarded email thread purportedly showing the court clerk received Father’s
notice of appeal at 5:49 p.m. on November 30th. Regarding this 5:49 p.m.
time stamp, Father protests that he “has no idea if it got sent from one clerk
account to another or even if the time zone settings on the clerk’s email
account are accurate.” Father’s Brief at 4.
We cannot conclude that Father’s appeal is untimely. Father’s notice of
appeal is stamped as filed with the clerk of family court on November 30,
2020. The trial docket entry for the notice of appeal indicates the time of filing
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as “30-NOV-2020 09:17:56.” In light of all the foregoing, we decline to quash
Father’s appeal, and we proceed to address his claims.
III. Father’s Questions Involved & Appellate Brief
Father presents the following claims for our review:
1) Did the court below err in refusing to allow [Father] to call witnesses and produce evidence with respect to the petitions filed and by unnecessarily delaying the issuance of a final custody order?
2) Did the court below err in not properly considering the evidence that was produced and using the factors in 23 Pa.C.S. § 5328 to make a custody order?
Father’s Brief at 10 (suggested answers omitted).
We address Father’s defective presentation of his claims on appeal.
While Father raises two claims in his statement of questions involved, and the
argument portion of his brief is divided into two sections, each section includes
a litany of brief, tangential subclaims, some — as we discuss infra — lacking
legal authority. Cf. Pa.R.A.P. 2119(a) (“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[.]”); In re M.Z.T.M.W., 163 A.3d 462, 465
(Pa. Super. 2017) (“It is well-settled that this Court will not review a claim
unless it is developed in the argument section of an appellant’s brief, and
supported by citations to relevant authority.”). It is difficult to parse through
Father’s numerous arguments.
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While Father’s noncompliance with the Rules of Appellate Procedure is
not so substantial as to require dismissal of his entire appeal, we will deem
his claims waived where we cannot conduct meaningful review. See Pa.R.A.P.
2101 (if the defects in the brief are substantial, the appeal may be quashed
or dismissed); Krauss v. Trane U.S. Inc., 104 A.3d 556, 584 (Pa. Super.
2014) (“When deficiencies in a brief hinder our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or find certain issues to
be waived.”).
IV. Timeliness of Custody Hearings & Evidentiary Rulings
We first note the relevant standard of review in child custody matters:
In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
In the first portion of his first claim, Father argues the trial court violated
his right to due process by entering the August 20, 2018, interim order
midway through the custody hearings, before he had the opportunity to
present any of his own case-in-chief. Father’s Brief at 16. Father suggests
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that because the order significantly increased Mother’s physical custody time,
and the court “made abundantly clear that [it] wished to transition to shared
physical custody,” at the June 10, 2019, hearing “he had no real choice but to
agree to shared physical custody”. Id. at 17-18. After careful review, we
determine these arguments are waived.
“A question regarding whether a due process violation occurred is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018)
(citation omitted).
It is well settled that "procedural due process requires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case." "Due process is flexible and calls for such procedural protections as the situation demands."
Id. at 1161 (citations omitted).
Pennsylvania Rule of Civil Procedure 1915.13 provides for special relief
in a custody action:
At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include, but is not limited to, the award of temporary legal or physical custody . . . .
Pa.R.C.P. 1915.13 (emphasis added).
Father’s claim lacks merit pursuant to Rule 1915.13, which provided the
trial court discretion to enter an interim custody order during the pendency of
a custody proceeding. See Pa.R.C.P. 1915.13. Father does not cite any legal
authority precluding a court from entering a temporary order before receiving
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evidence from both parties. Furthermore, Father’s argument — that he “had
no real choice” but to agree, at the June 10, 2019, hearing to the order issued
that day — is waived and belied by the record. As stated above, at that
hearing, both parties advised the court that they “agreed to the 50/50
custody,” but wished the court to determine whether the schedule of custody
should be “week on, week off versus the two, two five schedule,” and to
determine the schedule for religious holidays. N.T., 6/10/19 Vol. I, at 31, 32
(emphasis added). Father’s counsel specifically acknowledged the trial court
had “enough knowledge about the case” to make these conclusions. Id. at
32-33. Accordingly, no relief is due. See Pa.R.A.P. 302(a) (“Issues not raised
in the trial court are waived and cannot be raised for the first time on
appeal.”).
The second portion of Father’s first claim is that the trial court
“completely disregarded” Pa.R.C.P. 1915.4(c) and unnecessarily delayed the
issuance of a final custody order. Father’s Brief at 17, 19. He further avers
he was prejudiced because he “never got the chance to produce evidence in
his own case in chief” and “[h]ad he been given the opportunity, [he] could
have presented his own case before supervised custody for [Mother] was
changed and the Court may have not changed the custody order.” Id. at 19.
No relief is due.
Pennsylvania Civil Rule of Procedure 1915.4(c) provides:
(c) Trial. [Custody t]rials before a judge shall commence within 90 days of the date the scheduling order is entered. Trials
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and hearings shall be scheduled to be heard on consecutive days whenever possible but, if not on consecutive days, then the trial or hearing shall be concluded not later than 45 days from commencement.
Pa.R.C.P. 1915.4(c).
Here, the trial court did not complete the hearings in this matter until
October 28, 2020, more than two years after the first hearing on July 17,
2018. Thus, we agree that the trial court did not comply with the plain
language of Rule 1915.4. Nevertheless, it is apparent Father did not suffer
prejudice. See J.C. v. K.C., 179 A.3d 1124, 1130 (Pa. Super. 2018) (“[Relief]
is not warranted merely because some irregularity occurred during the
trial . . . ; the moving party must demonstrate . . . . that he or she has suffered
prejudice from the mistake[.]”). First, with respect to removal of the
supervision condition of Mother’s physical custody, the trial court eliminated
that requirement on July 20, 2018, after the first day of the hearing. This
decision was thus not affected by any delay in completing the remainder of
the hearings. Furthermore, any claim, that supervision of Mother’s custody
should have continued, was forfeited when Father eventually agreed, at the
June 10, 2019, hearing, to shared “50/50” custody with her. See N.T.,
6/10/19, at 31. Father’s claim that he was denied the opportunity to present
his case-in-chief is likewise waived, where, again, he agreed to shared custody
and to the trial court’s determining the specific custody schedule. See id.
Father did not request to testify or present any evidence at the June 10th
hearing. Finally, at the last two hearings on August 18 and October 28, 2020,
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Father focused on the issue of school choice, and did not challenge at all the
shared physical custody award or lack of a supervision requirement. For the
foregoing reasons, no relief is due under Rule 1915.4.
Father next presents various challenges to the trial court’s evidentiary
rulings. We first note the relevant standard of review: “[T]he decision of
whether to admit or exclude evidence is within the sound discretion of the
[trial] court. A reviewing court will not disturb these rulings absent an abuse
of discretion. Discretion is abused if, inter alia, the [trial] court overrides or
misapplies the law.” In re A.J.R.-H., 188 A.3d 1157, 1166-67 (Pa. 2018)
(citations omitted).
Father contends the trial court abused its discretion by excluding, at the
August 18, 2020, hearing, the “Future Ready PA Index” for the elementary
schools in his and Mother’s elementary schools. Father’s Brief at 21. Father
denies this evidence was, as the court found, hearsay. Father now asserts he
was not seeking to admit it for its truth. Id. He claims: “A rating of ‘90’, for
example, is not offered to prove that a school is, in fact a ‘90’, but rather as
evidence to support the reasonableness of each party to being able to make
a legal custody decision, which is precisely the matter being decided.”7 See
id.
7 Father also contends, in a two-sentence argument, that the trial court should
have taken judicial notice of the “Future Ready PA Index” because it “is an official government evaluation that is open to the public.” Father’s Brief at (Footnote Continued Next Page)
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Hearsay is defined as a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Pa.R.E. 801(c)(1)-(2). Generally, hearsay is not admissible, unless a hearsay
exception applies. See Pa.R.E. 802.
First, Father has waived any claim that he did not offer the evidence for
the truth, as he made no such argument before the trial court. See N.T.,
8/18/20, at 11; Pa.R.A.P. 302(a). Furthermore, his supporting argument is
not entirely clear. In the same section of his brief, Father contends: “The
Court should have considered the academics of the schools in deciding where
the child should have attended school and not to [sic] was in error.” Father’s
Brief at 23. The trial court’s reasoning, that the report was offered to show
the truth of its statements — the quality of the school’s academic program —
was reasonable. Father’s present contention — that the evidence would have
gone instead to “the reasonableness of each party to being able to make a
legal custody decision” — is not entirely clear. See id. at 21. Accordingly,
we would conclude Father has not presented a cogent discussion why the trial
21. Father has waived this claim, as: (1) he made no such request to the trial court to take judicial notice; and (2) he fails to support this argument in his brief with discussion of relevant legal authority. See Pa.R.A.P. 302(a); M.Z.T.M.W., 163 A.3d at 465.
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court erred in finding this evidence was inadmissible hearsay. See
M.Z.T.M.W., 163 A.3d at 465 (claim must be developed and supported by
relevant authority).
Father contends in the fourth portion of his first claim that the trial court
abused its discretion, at the August 18, 2020, hearing, by preventing him from
presenting evidence regarding Mother’s alleged lack of stability in housing and
employment. Father maintains this evidence was relevant to show whether
Child would continue to be a part of her present community — which was,
Father maintains, Mother’s “whole argument [for] the child attending Penn
Wynne.” Father’s Brief at 24.
We conclude no relief is due. Father ignores the trial court’s discussion
of this claim, which specifically refers to the portion of the transcript where
such evidence was presented. See Trial Ct. Op. at 20 (“It is simply untrue
that this court refused to hear and consider evidence regarding [Mother’s]
economic stability and the stability of her residence.”). The trial court quoted
Mother’s testimony that: although she moved in the past two years, she
remained in the same school catchment area; she was recently laid off from
her job due to the COVID-19 pandemic; she was receiving unemployment
compensation; she would be compensated for leading the learning pod; and
she lives with her boyfriend, who contributes to the monthly rent. Id. at 20-
21, quoting N.T., 8/18/20, at 35-36. The court only restricted Father’s cross-
examination when his counsel asked Mother whether she and her boyfriend
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have broken up in the past year — a ruling that Father does not challenge
with specificity in this appeal. See N.T., 8/18/20, at 36. Accordingly, no relief
is due.
In the fifth portion of his first claim, Father challenges the trial court’s
ruling to exclude his proposed witness, the school district enrollment
administrator, at the October 28, 2020, hearing. He contends her testimony
would have established Mother “had known long before which school’s area
she lived in and deliberately deceived the court.” Father’s Brief at 26.
Furthermore, he alleges “there was no pre-hearing order directing the parties
to exchange witness lists.” Id. at 25.
Father articulated no such offer of proof before the trial court — that the
witness’s testimony would show Mother acted deceptively with respect to
whether she knew her school catchment area. See N.T., 10/28/20, at 6.
Accordingly, this claim is waived. See Pa.R.A.P. 302(a). Furthermore, even
if not waived, we conclude the claim does not entitle him to relief. Father
wholly ignores that he was permitted to testify about the very topics that he
sought to present through the witness — “the enrollment process and what
had occurred.” See N.T., 10/28/20, at 6. Father extensively testified about
Mother’s enrollment of Child in the school district’s virtual program, Father’s
disagreement with this decision and his communication with the school
district, Father’s subsequently learning that Mother did not in fact live in the
Penn Wynne catchment area, but instead the area for Penn Valley, and the
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school district’s ultimate decision, based on the trial court’s order, to enroll
Child for in-school instruction at Penn Wynne. Id. at 11-16, 19-22. Finally,
Father fails to address the trial court’s finding that Mother was credible — that
both the school district and her landlord had misinformed her that her
residence was within the Penn Wynn catchment area. See Trial Ct. Op. at 24.
Accordingly, we discern no prejudice to Father. See J.C., 179 A.3d at 1130.
Next, Father argues in the sixth and final portion of his first claim that
the trial court did not permit him to present testimony regarding his “May 31,
2019,” contempt petition before disposing of it in its October 28, 2020, final
order. Father’s Brief at 27-28. We find no merit to this assertion.
Our review indicates Father did not file a petition for contempt on May
31, 2019, although he did file one on June 6, 2019.8 In this petition, he
alleged Mother was failing to bring Child to school on time. At the beginning
of the June 10th hearing, four days later, Father raised “the issue about mom
getting [Child] to school on time on Monday.” N.T., 6/10/19 Vol. I, at 3. At
the end of the hearing, after the parties reached their “50/50” custody
agreement, Father’s counsel requested the trial court include in its order a
provision that “the parent is expected to take [Child] to school timely . . .
things like that, that we had agreed on.” Id. at 53-54. This statement,
8 See also Trial Ct. Op. at 25 (“[Father] again does not specify to which petition for contempt he refers. [H]e filed petitions for contempt on February 16, 2017, and June 6, 2019.”).
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coupled with the lack of any specific request to further address his contempt
petition, indicates Father’s satisfaction that the trial court duly considered his
claims. Furthermore, Father again wholly ignores the record, specifically
Mother’s explanation at the August 18, 2020, hearing, that Child was late to
school some days because of Child’s court-ordered therapy appointments.
Significantly, Father does not refute Mother’s testimony that the therapist
confirmed the timing of these appointments and that he was aware this was
the reason why Child was late to school. See N.T., 8/18/20, at 27. Father
also fails to address the court’s specific finding that Mother was credible on
this issue. See Trial Ct. Op. at 25-26.
As we conclude none of Appellant’s first issue arguments merit relief,
we proceed to his second issue on appeal.
V. Statutory Custody Factors, 23 Pa.C.S. § 5328(a)
Again, Father presents multiple arguments under a single claim. First,
he asserts the trial court failed to place sufficient weight on the custody
evaluation prepared for this case, which he characterizes as the “most
important piece of evidence” in the proceeding. Father’s Brief at 28-29. No
relief is due.
Father fails to address the trial court’s discussion of his claim. In its
opinion, the court stated:
[T]his court absolutely considered the custody evaluation conducted by Dr. Constance Mesiarik. This court had read Dr. Mesiarik’s report . . . and carefully considered Dr. Mesiarik’s recommendations. This court fully agreed with the evaluator’s
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descriptions of the relationship between [the parties] as “toxic.” Dr. Mesiarik noted that she had not received a reply from [Father’s] former therapist.
* * *
Based on the recommendations of the custody evaluator [the parties] entered into an agreement for custody on June 10, 2019. In addition, Dr. Mesiarik’s recommendations prompted this court to order the parents engage in co-parent counseling in [the] order of June 10, 2019[.]
Trial Ct. Op. at 22-23 (record citation and footnote omitted). While Father
challenges the weight the trial court accorded to the evaluation, our standard
of review requires us to defer to the court’s weight and credibility
determinations. See V.B., 55 A.3d at 1197. Furthermore, Father again fails
to acknowledge that he agreed to the “50/50” shared custody that was
recommended by the custody evaluator. See N.T., 6/10/19 Vol. I, at 31.
Second, Father challenges much of the trial court’s findings under the
statutory child custody factors at 23 Pa.C.S. § 5328(a). Father’s Brief at 29-
42. We first set forth the statutory factors:
(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 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.
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(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(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.
(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.
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23 Pa.C.S. § 5328(a)(1)-(16).
For example, Father avers the trial court erred in finding Mother
“demonstrates a willingness to compromise,” and thus erred in finding she
was “more likely to encourage and permit frequent and continuing contact.”
Father’s Brief at 29, citing 23 Pa.C.S. § 5328(a)(13). Father also claims that
any “present and past abuse committed by party” did not apply, and the court
should not have mentioned the “a prior ex-parte temporary protection order
which was subsequently vacated.” Father’s Brief at 30, citing 23 Pa.C.S. §
5328(a)(2).
Again, Father fails to consider that he agreed to “50/50” shared
custody, and that the parties agreed the trial court would determine the
particular weekly schedule. See N.T., 6/10/19 Vol. I, at 31-33. While Father
contends on appeal that the evaluation recommended a “gradual” transition
to shared physical custody, he agreed to the immediate effect of the parties’
agreed-upon custody arrangement on June 10, 2019. At neither of the two
subsequent hearings (August 18 and October 28, 2020,) did Father request
the court to revisit the custody award or argue a different schedule would
better serve Child’s best interests. Instead, Father’s sole issue was the choice
of Child’s school. Under these circumstances, and mindful of our standard of
review, we discern no basis to disturb the October 28, 2020 order.
Finally, Father suggests, in a discussion of Section 5328(a)(13) (level of
conflict between the parties), that the trial court committed an abuse of
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discretion by failing to appoint a co-parent counselor. Father’s Brief at 38.
Father has waived this claim by failing to include it in his Rule 1925(a)(2)
statement and failing to develop it in his brief with citations to relevant legal
authority. See Pa.R.A.P. 1925(b)(4)(vii) (“[A]ny issue not properly included
in the Statement timely filed and served pursuant to subdivision (b) shall be
deemed waived.”); M.Z.T.M.W., 163 A.3d at 465-66.
VI. Conclusion
We conclude Father’s claims do not entitle him to relief, and thus affirm
the trial court’s October 28, 2020, order awarding the parties’ shared legal
and physical custody of Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/17/2021
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