S.A.R. v. K.J.Y.

• Court: Superior Court of Pennsylvania
• Decided: March 21, 2017
• Docket: S.A.R. v. K.J.Y. No. 1184 MDA 2016
• Status: Unpublished

Opinion

J-A03004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.A.R. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

K.J.Y.

Appellant No. 1184 MDA 2016

Appeal from the Judgment July 6, 2016 In the Court of Common Pleas of York County Civil Division at No(s): 2008-FC-002144-03

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED MARCH 21, 2017

K.J.Y. (Mother) appeals from the judgment, entered in the Court of

Common Pleas of York County, which granted primary custody of Child (born

October 2008) to S.A.R. (Father). Upon review, we affirm.

Mother and Father filed competing petitions for modification of a

custody order entered in November 2013. Father also filed two petitions

alleging Mother’s contempt of the custody order. Father sought sole legal

custody and primary physical custody in a petition for modification filed

September 8, 2014, and Mother sought shared legal custody and primary

physical custody in a petition for modification filed April 13, 2015. The

primary point of contention in this matter is that Mother accuses Father of

committing sexual abuse against Child. The trial court found Mother’s

accusations to be false after hearing testimony from the parties, the Child, J-A03004-17

and an expert witness, Dr. Peter Thomas. The court awarded shared legal

custody to both parents, shared physical custody during the school year, and

primary physical custody to Father during the summer months. This timely

appeal followed.

On appeal, Mother raises the following issues for our review:

1. Did the trial court err by failing to consider the expert report and testimony of Dr. Peter Thomas insofar as it related to a recommendation with regard to custody?

2. Did the trial court err by finding that [M]other promulgated false allegations of sexual abuse of [Child] by [F]ather?

3. Did the trial court err by finding [M]other in contempt?

4. Did the trial court err in awarding [F]ather attorney’s fees when no evidence regarding the incurring of attorney’s fees had been presented?

5. Did the trial court err in fashioning a new custody arrangement for the summer months?

Brief of Appellant, at 5.

In her first issue, Mother contends that the trial court erred by

disregarding Dr. Peter Thomas’ recommendation regarding custody

arrangements for Child. In her second issue, Mother argues that the trial

court erred in its credibility determinations regarding Mother’s claims that

Father sexually abused Child. Both claims involve the trial court’s weighing

of the evidence.

Our standard of review is as follows:

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

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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.

With any child custody case, the paramount concern is the best interests of the child.

B.C.S. v. J.A.S., 994 A.2d 600, 602 (Pa. Super. 2010).

As to the testimony of an expert witness in a child custody case,

“[w]hile a trial court is not required to accept the [expert’s] conclusions . . .,

it must consider them, and if the trial court chooses not to follow the

expert’s recommendations, its independent decision must be supported by

competent evidence of record.” M.A.T. v. G.S.T., 989 A.2d 11, 20 (Pa.

Super. 2010).

In this matter, Dr. Thomas indicated that communication between

Mother and Father is dysfunctional and cited Father’s withdrawing from co-

parenting counseling as problematic in this regard. Dr. Thomas also noted

that Father had relatively deficient parenting skills overall compared to

Mother. Dr. Thomas did not specifically indicate an opinion regarding

Mother’s allegations that Father had sexually abused Child. York County

Children and Youth and Family Services (the Agency) investigated the

allegations and determined that they were unfounded, based upon an

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interview with Child and a meeting with Child, Mother, and the Child’s

maternal grandmother.

As the trial court noted, the Agency’s meetings

led the agency to believe that [C]hild was coached on what to say by [M]other and/or [her] maternal grandmother. Further, a pediatrician at Hanover Pediatrics that examined [C]hild notified Children Youth and Family Services on September 8, 2014, indicating that he felt [C]hild had been coached on what to say.

Trial Court Opinion, 8/9/16, at 3. Accordingly, although Dr. Thomas opined

regarding the general level of Mother’s parenting skills, in light of the trial

court’s determination that Mother had coached the Child to say she had been

abused, the court was free to disregard the doctor’s opinion. Indeed, the

court’s independent decision to grant Father primary custody is supported by

the record. M.A.T., supra.

Furthermore, in light of Mother’s false accusations, no reason exists to

disturb the court’s credibility determinations disagreeing with Mother’s

testimony that it would be best for Child to be primarily in her care.

Accordingly, we find no error in the court’s weighing of the evidence as

presented through the testimony of Dr. Thomas and Mother. B.C.S., supra.

In her third and fourth issues, Mother asserts that the court erred by

finding her to be in contempt and relatedly awarding attorney’s fees.

However, in her appellate brief, Mother indicates that she has taken a

separate appeal from an order addressing these issues that was entered

after the taking of the instant appeal. Thus, these issues have not been

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briefed and have been abandoned in this appeal. Accordingly, we will not

address them herein.

Finally, Mother contends that the trial court erred by creating a

separate custody schedule for the summer months, as opposed to the

schedule in place for the school year. However, this issue, too, has been

abandoned on appeal, as no argument on this issue has been developed in

Mother’s appellate brief. Moreover, we note that the nature of the order

specifying different custody schedules for different parts of the year

indicates the care with which the court fashioned a tailored custody order in

the best interest of Child. Id.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/21/2017

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