Peshek, A. v. Percec, I.

• Court: Superior Court of Pennsylvania
• Decided: August 13, 2021
• Docket: 134 EDA 2021
• Status: Unpublished

Opinion

J-S18004-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREW D. PESHEK : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : IVONA D. PERCEC : No. 134 EDA 2021

Appeal from the Order Dated December 3, 2020 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): No. 0C1601311

BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 13, 2021

Appellant (“Father”) appeals from the final custody order entered on

December 3, 2020, which resolved all outstanding petitions between Father

and Appellee (“Mother”), including Father's petition to modify, petitions for

contempt, and petition for the appointment of a parenting coordinator. We

affirm.1

The trial court summarized the lengthy, contentious, procedural history

of this case:

The parties are a formerly married couple who are both medical doctors. They are the parents of two children, [A.], born ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We note the parties are involved in a separate appeal from a subsequent

modification of the custody order at issue in this appeal. See 1088 EDA 2021. This memorandum is confined to the custody order as entered on December 3, 2020. J-S18004-21

November ... 2005, and [I.], born December ... 2007. A final order entered on February 1, 2018, awarded shared legal custody, primary physical custody of both children to []Mother during the school year, partial physical custody to Father during the school year, and during the summer 50/50 shared physical custody, taking into account the children's camp schedules and summer activities.

Two months later the parties were again in litigation. Father filed an emergency petition on April 6, 2018, a petition to modify on April 12, 2018, a petition for contempt and a petition for expedited relief on April 30, 2018. Mother filed a petition to modify and a petition for emergency relief on June 7, 2018. A temporary order was entered on June 15, 2018, delineating a schedule for the summer of 2018 and reverting to the physical custody schedule set forth in the order of February 1, 2018 as of September 4, 2018.

On December 20, 2018, the court entered a temporary order modifying the February 1, 2018 order, awarding shared physical custody and continuing the case for a semi-protracted hearing. Several intervening petitions were filed by each party. An order was entered on April 12, 2019, addressing the summer 2019 schedule, and an order was entered on May 30, 2019, for the children to receive treatment with an identified therapist. Father filed a petition for contempt on November 12, 2019. Ultimately, the matter was scheduled for a protracted hearing on October 19, 2020.

Father filed a petition for contempt on August 24, 2020, and a petition for an emergency hearing on September 14, 2020. By order dated September 22, 2020, counsel for the parties agreed that the emergency petition would be consolidated with the pending petitions scheduled for hearing on October 19, 2020. Additionally, Father filed a petition for special relief seeking the appointment of a parenting coordinator on October 8, 2020.

The court conducted a virtual trial on October 19, 2020, and November 12, 2020, in accordance with judicial protocols established as a result of the COVID-19 pandemic. On November 12, 2020, Father withdrew the petition for contempt filed on April 30, 2018, and the court held under advisement Father's petition to modify filed on April 12, 2018, and his petition for special relief seeking the appointment of a parenting coordinator filed on

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October 8, 2020. These petitions subsumed all of the issues contained in the other then-outstanding petitions.

Trial Court Opinion, 1/21/2021, at 1-3 (footnote omitted). On December 3,

2020, the trial court issued an order awarding shared legal custody of both

children, year-round shared physical custody of I., primary physical custody

of A. to Mother during the school year, and shared physical custody of A.

during the summer. This timely appeal followed.

Father raises four issues on appeal.

1. Did the Trial Court err and/or abuse its discretion in failing to consider evidence of Mother's campaign to alienate the children from Father when granting her primary physical custody of [A.] throughout the school year?

2. Did the Trial Court err and/or abuse its discretion by failing to consider the context in which [A.'s] in camera interview was given when weighing such evidence for a custody determination?

3. Did the Trial Court err and/or abuse its discretion by failing to grant Appellant's petition for special relief to appoint a parenting coordinator, given the chronic high conflict nature of the case?

4. Did the Trial Court err and/or abuse its discretion by failing to sanction Mother for her numerous violations of the previous Custody Order?

Appellant’s Brief, at 5.

“Our standard of review over a custody order is for a gross abuse of

discretion.” Yates v. Yates, 963 A.2d 535, 538 (Pa. Super. 2008) (citation

omitted). Such an abuse of discretion will only be found if the “trial court, in

reaching its conclusion, overrides or misapplies the law or exercises judgment

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which is manifestly unreasonable, or reaches a conclusion that is the result of

partiality, prejudice, bias or ill will as shown by the evidence of record.” Id.

Further, in reviewing a custody order:

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.

Klos v. Klos, 934 A.2d 724, 728 (Pa. Super. 2007) (citation omitted). As with

any custody matter, the paramount concern is the best interests of the

children involved. See id.

Father first argues the trial court abused its discretion in failing to

consider evidence of Mother’s campaign to alienate the children from Father

in its decision to grant Mother primary physical custody of A. during the school

year. This claim is without merit.

When ascertaining the best interests of a child in a custody matter, the

court must conduct a case-by-case assessment of all the factors that may

legitimately affect the physical, intellectual, moral and spiritual well-being of

that child. Klos, 934 A.2d at 728. Accordingly, Section 5328(a) of the

Pennsylvania Child Custody Act lists 16 factors a court is required to consider

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in order to determine the best interests of the child. See 23 Pa.C.S.A. §

5328(a).

Here, the trial court addressed each of these factors in its custody order,

as required by Section 5328(a). See Order, 12/3/2020, at 3-7. In discussing

each factor, the court made a determination as to whether that factor weighed

in favor of either party, and explained its reasoning either way. See id.

Of relevance to the instant appeal, in discussing the above factors, the

trial court clearly acknowledged Mother’s behavior and its effect on A.’s

relationship with Father.

Factor (8) The Attempts of a Parent to Turn the Children Against the Other Parent, Except in Cases of Domestic Violence Where Reasonable Safety Measures are Necessary to Protect the Children from Harm.

Mother’s permitting [A.] to engage in his own decision-making as to his contact with Father has resulted in [A.’s] recent rejection of Father’s attempts to maintain a relationship and has led to [A.] beginning to turn against Father. Mother testified that she believes that the conflict between [A.] and Father is strictly between the two of them to work out by themselves.

Factor (1) Which Party is More Likely to Encourage and Permit Frequent and Continuing Contact Between the Children and Another Party.

This factor favors Father. Mother does not encourage [A.] to see Father. The evidence established that Mother permits [A.] to engage in his own decision-making as to the contact he will maintain with Father. Mother has permitted [I.] to see Father pursuant to the existing court order of shared physical custody. There is no evidence of Father failing to encourage or permit frequent contact between either child with Mother.

Order, 12/3/2020, at 4-5 (unnecessary capitalization omitted).

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After considering “the testimony of the parties and witnesses,

interviewing the children, reviewing the documents and evidence presented,

assessing the credibility of the parties, witnesses, and children, and

considering all relevant factors pursuant to 23 Pa.C.S. Section 5328(a)” the

court entered a final custody order that it determined, in its discretion, was in

the best interest of the children. See Order, 12/3/2020, at 1.

While the court found the above two factors weighed in favor of Father,

the court chose to afford more weight to other factors, including A.’s stated

preference in his testimony, in deciding to place primary custody of A. with

Mother during the school year. See id. at 4. The court found A. expressed a

well-reasoned preference to live with Mother during the school year based on

the proximity of Mother’s home to his school, friends, and after-school

activities. See id. Based on the court’s observations of A., and giving

consideration to his age, maturity, and judgment, the court afforded

significant weight to A.’s preferences.

Father’s contention that the custody court did not consider these factors

at all is belied by the court’s opinion and order. The court heard the testimony

and acknowledged that Mother was not actively supporting Father’s visitation

rights. However, the court placed more weight on A.’s stated preference for

living near his school and friends. To conclude the court abused its discretion,

we must do more than disagree with the court’s findings and conclusions.

Instead, we must find that the court’s findings and conclusions were

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manifestly unreasonable. As we cannot conclude the court abused its

discretion in placing more weight on A.’s preferences than on Mother’s

obstructive behavior, Father’s first issue on appeal merits no relief.

Next, Father alleges the trial court abused its discretion by failing to

consider the context in which the in-camera interview of A. was performed.

Specifically, Father argues the court could not have understood A.’s responses

to the interview without taking into consideration the fact that the interview

was performed in Mother’s home.

We are constrained to find Father has waived this issue. It was clear to

all parties at trial that all interviews, as well as all custody hearings, would be

conducted virtually, using RingCentral - a court-provided technology, due to

the ongoing Covid-19 pandemic. All parties were aware of the scheduling of

A.’s interview and that it would take place during Mother’s custody time.

Father failed to raise any objection to the context of the interview at any point.

Therefore, this issue is waived. 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.”)

Further, the custody court stated that it was fully aware of the

circumstances of the interview and alert to the possibility the circumstances

would improperly influence A.’s testimony. However, as the court noted, A.’s

stated preference to stay near his school and friends was objectively

reasonable. Even if Father had properly preserved this argument, we would

conclude it would not merit relief.

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Next, Father claims the trial court erred by failing to grant Father’s

request to appoint a parenting coordinator. Under Pennsylvania Rule of Civil

Procedure 1915.11-1, regarding parenting coordination,

[a]fter a final custody order has been entered, a judge may appoint a parenting coordinator to resolve parenting issues in cases involving repeated or intractable conflict between the parties affecting implementation of the final custody order. A parenting coordinator should not be appointed in every case. The appointment may be made on the motion of a party or the court's motion.

Pa.R.C.P. 1915.11-1(a)(1). Father requested that the custody court appoint a

parenting coordinator; Mother countered that a coordinator was not necessary

if the parties participated in co-parenting counseling. The court sided with

Mother and found that a coordinator was not necessary given the parties’

agreement to attend co-parenting counseling.

While it is clear there have been repeated conflicts between Mother and

Father in implementing the custody order, we nevertheless find the trial court

did not err in denying Father’s request for a parenting coordinator. Parenting

coordinators have a limited scope of authority, and the trial court has

discretion whether to appoint a parenting coordinator, as “a parenting

coordinator should not be appointed in every case.” Here, pursuant to the

December 3, 2020 custody order, both Mother and Father agreed to

participate in co-parenting counseling for the purpose of reducing the level of

conflict. See Order, 12/3/2020, at 1, 3.

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Father complains that the counseling was not sufficient given Mother’s

opposition to and obstruction of his custody and visitation rights. While

Father’s arguments are persuasive, we cannot conclude that the custody

court’s conclusion on this issue is an abuse of discretion. The court was not

unreasonable in expecting the counseling to affect Mother’s behavior. If Father

feels that the counseling has not had the desired effect on Mother’s behavior,

he is free to seek further relief in the future.

Finally, Father contends the trial court abused its discretion by failing to

sanction Mother for numerous violations of the previous custody order.

Specifically, Father argues Mother violated the custody order by either actively

allowing A. to violate the custody order, or at least by not forcing A. to follow

the custody order.

A court may hold a party in civil contempt for the willful disobedience of

a custody order. See Pa.R.C.P. 1915.12. Here, the court acknowledged that

Mother’s position - that the conflict between A. and Father is strictly between

them to work out between themselves - is contrary to the agreement between

the parties enunciated in the custody order. However, the court found Father

did not prove that Mother acted with wrongful intent in not physically forcing

A. to see or speak with Father based upon her opinion that the resolution of

the conflict between A. and Father would be best achieved between A. and

Father themselves. See Trial Court Opinion, 1/21/2021, at 10-11.

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While once again Father’s argument is persuasive, we cannot conclude

the custody court erred in refusing to find Mother in contempt. The court was

not unreasonable in crediting Mother’s testimony that she supports A.

following the custody schedule but that she believes she cannot physically

force A., at his age, to go to his Father’s house against his wishes.

The court is clearly familiar with the parties' long history of contentious

litigation. The court did not find Mother in contempt for not enforcing Father’s

custody time pursuant to the original custody order, but instead found that a

modification to the custody order was necessary. The court afforded

substantial weight to the children’s testimony, specifically A.’s testimony

regarding his preference to live near his school and friends, and chose to

modify the custody order by awarding physical custody of A. to Mother during

the school year. Like the custody court, we do not excuse or condone Mother

not following the letter of the custody order. However, the custody court was

in the best position to assess the parties’ willingness to comply with the

custody order. Further, the custody court’s method of addressing the issue

through modification of the custody order, rather than through a finding of

contempt, is not manifestly unreasonable under the circumstances.

Accordingly, Father’s final issue merits no relief.

As none of Father’s issues on appeal merit relief, we affirm the final

custody order resolving all issues between Father and Mother.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/2021

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