Shepski, R. v. Shepski, M.

• Court: Superior Court of Pennsylvania
• Decided: April 29, 2025
• Docket: 1609 MDA 2024
• Status: Unpublished

Opinion

J-A07002-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

REBECCA ANNE SHEPSKI : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL JAMES SHEPSKI : : Appellant : No. 1609 MDA 2024

Appeal from the Order Entered October 11, 2024 In the Court of Common Pleas of Centre County Civil Division at No(s): 2024-CV-2538-PR

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY BOWES, J.: FILED: APRIL 29, 2025

Michael James Shepski (“Husband”) appeals from the final order entered

pursuant to the Protection from Abuse (“PFA”) Act, granting the petition filed

by Rebecca Anne Shepski (“Wife”). We affirm.

We glean the following history from the certified record. Husband and

Wife met in Australia, were married for over sixteen years, and are the parents

to three minor children. The parties subsequently separated and Wife initiated

divorce proceedings in May 2023, which Husband contested. Initially, the

parties verbally agreed to transfer physical custody of the children every two

days. Not long before the instant PFA proceedings, they modified the

arrangement to alternate custody on a two-two-three schedule. Due in part

to disagreements around the custody exchanges and the viability of the

schedule for Husband, the parties turned to the courts and underwent co-

parenting counseling in an effort to resolve the issues by stipulation. Having J-A07002-25

no resolution by September 2024, Wife filed a praecipe to schedule a custody

trial.

The next day, Wife filed the underlying PFA petition, naming only herself

as the person to be protected. The PFA court, which was presided over by the

same judge assigned to the parties’ custody docket, immediately granted a

temporary PFA order. No formal custody order was in place at that time for

the children, who were at that point eleven, thirteen, and sixteen years old.

The temporary PFA order included a custody provision that maintained the

then-existing two-two-three schedule but modified the exchanges to occur by

the children riding the school bus to and from the custodial parent’s home.

Given the complexity of the two-two-three alternating schedule, the court

included a detailed custody provision to ensure it was “clear enough that it’s

enforceable.” N.T. Temporary PFA Hearing, 9/26/24, at 6.

The parties both appeared for the final PFA hearing and presented

evidence. Wife testified and additionally called her partner, Jasmiene

Rumford-Carranza, as a witness. Ms. Rumford-Carranza relayed an incident,

which occurred at church sometime shortly before the filing of the PFA petition,

where Husband “stormed towards” Wife, “belittling her” and “got in her face”

such that they “probably could have been touching.” N.T. Final PFA Hearing,

10/8/24, at 9-10. This confrontation prompted Ms. Rumford-Carranza to step

in between Husband and Wife to de-escalate the situation and direct them

outside. She conveyed two additional instances of Husband being in Wife’s

face, towering over her, and loudly “demand[ing] respect” prior to the filing

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of the PFA petition, one of which occurred during a custody exchange at Wife’s

residence. Id. at 11-12. Ms. Rumford-Carranza further explained that

Husband sends Wife emails “every single day, morning, night[,]” that cause

Wife to cry. Id. at 13.

Wife confirmed her fear of Husband and expounded upon the three

incidents referenced by Ms. Rumford-Carranza. In addition, she stated that

on another occasion when she attempted to pick up their son after he went to

Husband’s house from the school bus during Wife’s custodial time, Husband

refused to have their son come outside and instead leaned against Wife’s car

and yelled at her. Afraid and unsure what to do, she put up her window and

called the police. Id. at 37-38.

She also proffered seven exhibits demonstrating the nature of the

communication between her and Husband. In one written exchange, Husband

insinuated that Wife had mental distortions that he claimed were the result of

different undiagnosed ailments. She iterated that Husband had, throughout

their marriage, accused her of having mental disorders that caused her to

have inaccurate memories. Id. at 27-28. In other messages, Husband

conveyed his belief that God condemned their divorce, she remained his wife

regardless of what she said to the contrary, and that it was God’s plan for

them to stay together. Id. at 29-32. Wife elaborated that Husband had used

exposure therapy and religion to pressure her to do things sexually that she

did not want to do during their marriage. Id. at 57. She noted that each

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interaction with him caused her to “remember the . . . stuff that he’s done.”

Id. at 39.

Wife described the change since the temporary PFA order went into

effect as “Heaven” and a “break from constantly being . . . attacked and having

accusations throw[n] at [her] and not having to like work [her] way around

all of this psychological stuff that he does[.]” Id. at 38-39. As Wife recounted

it, she filed the PFA petition because she was “so exhausted by it and [was]

sick of being scared.” Id. at 38.

Husband testified in his defense. According to him, the church

interaction did not involve any confrontation. Id. at 69. Rather, he contended

that Wife filed the PFA petition to bypass the custody process and obtain terms

more favorable to her, such as the bus exchange and maintenance of the two-

two-three schedule. Husband also solicited testimony from his sister, Lori

Tahn. She explained that Wife often turned to her when upset and based

upon these interactions believed that Wife had developed a pattern of being

“the victim and everyone else is to blame.” Id. at 81.

At the conclusion of the hearing, the court found that Wife had met her

burden and entered a final, three-year PFA order. Notably, it directed that

custody would be superseded and governed by any orders entered on the

separate custody docket. However, by the time of the final hearing, no order

had yet been issued. Therefore, in the meantime, the court continued the

provisions set forth in the temporary PFA order, including the requirement

that custody exchanges occur by the children riding the school bus from the

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custodial parent’s residence. It also limited Husband’s communications with

Wife to be only through the Our Family Wizard co-parenting application,

concerning the children, and between 8:00 a.m. and 9:00 p.m.

Husband filed a timely notice of appeal. Both he and the trial court

complied with Pa.R.A.P. 1925. Husband presents the following issues for our

consideration:

1. Did the trial court err in entering a final [PFA] order of court against Husband in considering that Wife failed to prove that Husband abused her as defined under 23 Pa.C.S. § 6102(a)(1)- (5)?

2. Did the trial court err in entering a final [PFA] order of court against Husband for the full statutory period of three years in absence of any evidence of abuse as defined under 23 Pa.C.S. § 6102(a)(1)-(5)?

3. Did the trial court commit an abuse of discretion in failing to consider that the temporary and final [PFA] orders were in fact an abuse of the custody litigation process by Wife?

4. Did the trial court commit an abuse of discretion in failing to consider the best interests of the minor children as required by 23 Pa.C.S. § 5328 through entering a custody provision in the final [PFA] order of court?

Husband’s brief at 4-5 (some capitalization altered).

We review a court’s legal conclusions in PFA orders for an error of law

or abuse of discretion. See E.K. v. J.R.A., 237 A.3d 509, 519 (Pa.Super.

2020). Husband first assails the court’s finding that Wife established abuse.

We consider this claim pursuant to the following principles:

The PFA Act does not seek to determine criminal culpability. A petitioner is not required to establish abuse occurred beyond a reasonable doubt, but only to establish it by a preponderance of

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the evidence. A preponderance of the evidence standard is defined as the greater weight of the evidence, i.e., enough to tip a scale slightly.

When a claim is presented on appeal that the evidence was not sufficient to support an order of protection from abuse, we review the evidence in the light most favorable to the petitioner and granting her the benefit of all reasonable inferences, determine whether the evidence was sufficient to sustain the trial court’s conclusion by a preponderance of the evidence. This Court defers to the credibility determinations of the trial court as to witnesses who appeared before it.

....

The purpose of the PFA Act is to protect victims of domestic violence from those who perpetrate such abuse, with the primary goal of advance prevention of physical and sexual abuse. In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury. Past acts are significant in determining the reasonableness of a PFA petitioner’s fear.

Id. at 519 (cleaned up).

The pertinent definition of abuse within the PFA Act provides as follows:

“Abuse.” The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:

(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses).

23 Pa.C.S. § 6102(a). Finally:

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In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of bodily injury. The intent of the alleged abuser is of no moment. Moreover, this Court has held that past acts are significant in determining the reasonableness of a PFA petitioner’s fear. As the goal of the Act is to prevent physical and sexual abuse, a victim does not have to wait for physical or sexual abuse to occur for the Act to apply.

K.B. v. Tinsley, 208 A.3d 123, 128 (Pa.Super. 2019) (cleaned up).

Husband’s first two issues hinge upon his allegation that the PFA court

erred in determining that Wife had sustained her burden of proving abuse. He

maintains that the exhibits introduced at trial did not establish abuse pursuant

to § 6102(a)(5). In his view:

[He] never engaged in a course of conduct that placed Wife in reasonable fear of bodily injury, nor did his conduct come close to rising to the level of how the appellants in Mescanti v. Mescanti, 956 A.2d 1017 (Pa.Super. 2008), and T.K. v. A.Z., 157 A.3d 974 (Pa.Super. 2017), behaved.

Husband’s brief at 24 (citations altered).

In Mescanti, we affirmed the trial court’s finding of § 6102(a)(5) abuse

where the husband, over the course of multiple months, provoked arguments

with his wife, rummaged through her personal belongings, followed her in

public, deprived her of sleep, alternately locked her out of and inside the

marital home, professed his obsession with her, and, on the final date in issue,

audibly cocked his firearm after warning her not to go to sleep. In T.K., we

agreed with the trial court that the petitioner had established abuse under the

same subsection based upon the defendant following her in public on foot and

by vehicle, tracking her whereabouts, driving past her home and honking the

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horn, and attempting to yell to her while talking to their children despite a

court order limiting communication to a specific application.

Contrarily, Husband contends that Wife’s annoyance at his reconciliation

attempts did not amount to abuse pursuant to § 6102(a)(5). See Husband’s

brief at 26. He insists that the messages admitted at the final PFA hearing did

not support a finding that he tried to convince Wife that she suffered from

various ailments, and that he “never attempted to manipulate Wife using

religion, but rather he was trying to use religion to guide the parties’

relationship in hopes of reconciling the same.” Id. at 25-26 (citation omitted).

The PFA court disagreed with Husband’s characterization of his

communications with Wife. It credited Wife’s testimony of Husband’s sexual

abuse during the marriage, gaslighting, and refusal to accept Wife’s desire to

divorce. Moreover, it noted that Husband had “repeatedly ignored [Wife’s]

request” to contact her only about matters concerning their children. See PFA

Court Opinion, 11/27/24, at 2. The court found that the admitted messages

from January 2024 through September 2024 corroborated her testimony. Id.

Further, it explicitly discredited Husband’s version of the church

incident, instead giving weight to the description provided by Wife and her

partner:

Both [Wife] and Ms. Rumford-Carranza testified that, during the encounter about the child [at church], [Husband] was towering over [Wife], pointing his finger in her face, and demanding that she respect him. [Wife] was shaken and crying. Ms. Rumford- Carranza felt she had to step between [Husband] and [Wife] because of his demeanor toward her. [Wife] testified that it

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concerned her that [Husband] was behaving this way in a public place, and that she felt his aggressive behavior toward her was escalating. She testified that she was afraid of [Husband] during the encounter given his size and behavior.

Id. at 3. Finally, the court found sufficient evidence to establish the other two

incidents, initiated by Husband, where he “physically tower[ed] over [Wife]

and demand[ed] that she respect him,” placing her in fear “for her physical

safety.” Id. In both instances, he refused to leave when she asked.

The PFA court summarized its findings thusly:

The court found the testimony of [Wife] and her witness to be credible, and found that [Husband]’s behavior toward [Wife] demonstrated that he has engaged in a course of conduct and repeatedly committed acts toward [Wife] under circumstances placing [her] in reasonable fear of bodily injury. Moreover, the evidence demonstrated that [Husband] knowingly engaged in the conduct, and did so despite [Wife]’s repeatedly telling him she was afraid of him. The court found credible [Wife]’s fear that [Husband] would inflict bodily injury upon her to be reasonable. In so concluding, the court considered the backdrop of the parties’ separation and [Husband]’s refusal to accept her decision to divorce, the history of conduct during the marriage as testified to by [Wife], his manipulative communications to her, and the incidents during which he physically towered over her and behaved in a menacing manner.

Id.

While we agree with Husband that his conduct was not identical to that

committed in Mescanti and T.K., our review of the certified record

nonetheless confirms the PFA court’s conclusion that Wife established abuse

pursuant to § 6102(a)(5) by virtue of Husband’s escalating in-person

encounters and electronic communications. See R.G. v. T.D., 672 A.2d 341,

342 (Pa.Super. 1996) (finding evidence sufficient to prove § 6102(a)(5) abuse

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where defendant repeatedly called and sent increasingly hostile electronic

messages despite being asked to stop, told petitioner that she was the object

of his obsessive-compulsive disorder, and causing petitioner to be afraid to

walk around campus). Accordingly, we discern no error of law or abuse of

discretion in this regard.

Based upon his claim that Wife did not prove abuse, Husband next

argues that the court erred in granting the final PFA order for the full statutory

period of three years. See Husband’s brief at 27. He claims that such lengthy

“PFA orders are reserved for extreme cases, such as” in Mescanti or T.K. Id.

at 29 (some capitalization altered). In further support, he cited Ms. Than’s

“testimony that Wife has the propensity to feel victimized in situations where

she is not in fact a victim[.]” Id. At bottom, Husband insists that the court

erred in entering a three-year period for the final PFA order because Wife did

not establish abuse and his conduct did not rise to the level of the defendants

in Mescanti and T.K. Id. at 30.

As discussed hereinabove, while Husband’s conduct did not mirror those

defendants, Wife nonetheless proved abuse pursuant to § 6102(a)(5).

Moreover, insofar as Husband contests how the PFA court weighed the

testimony admitted at the final PFA hearing, “[t]his Court defers to the

credibility determinations of the trial court as to witnesses who appeared

before it.” E.K., 237 A.3d at 519. As noted, the court credited the testimony

offered by Wife over that of Husband. We will not disturb that determination.

Bearing this in mind, we observe that once the PFA court found abuse, it was

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required to set the PFA order “for a fixed period of time not to exceed three

years.” 23 Pa.C.S. § 6108(d). Husband offers no argument to shorten the

three-year-period beyond his contention, which we already rejected, that Wife

did not prove abuse. Since the PFA court was authorized to set the PFA order

for the period it did, we perceive no reason to disturb that decision.

Accordingly, this claim fails.

In Husband’s final two issues, he assails the custody portion of the PFA

order. Namely, he asserts that the PFA court (1) failed to acknowledge that

Wife’s PFA petition improperly allowed her to bypass traditional custody

procedures; and (2) abused its discretion in entering a custody provision in

the final PFA order without first considering the best interests of the children

pursuant to the sixteen factors set forth at 23 Pa.C.S. § 5328. See Husband’s

brief at 30, 34. He alleges that Wife “used the PFA process as a sword against

[him] to gain leverage in custody litigation.” Id. at 31. According to Husband,

the PFA order provided Wife the exact custody-exchange arrangement that

she had not yet been able to secure in the custody litigation. Id. at 33.

The PFA court explained that it considered Father’s argument about

Wife’s purported misuse of the PFA Act to game the custody proceedings but

ultimately found it spurious. See PFA Court Opinion, 11/27/24, at 4. As to

his second claim of error, the court discussed the temporary nature of the

custody provisions within the final PFA order, the time and logistical restraints

surrounding PFA proceedings generally, and the anticipation of a future

custody trial. Id. While acknowledging that it did not consider the sixteen

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best-interest factors relevant to custody matters, the court claimed that it

weighed “the children’s best interests in the context of the information

developed on the PFA record.” Id. Specifically, since it found that Husband

had acted aggressively during a custody exchange, it determined that

eliminating contact between Husband and Wife during the exchanges by

having the children instead switch bus stops based upon the custodial parent

served the best interests of the children. Id.

To address Husband’s final two issues, “we must examine the

connection between the [PFA] Act (23 Pa.C.S. §§ 6101-6122) and the current

iteration of the Child Custody Act (23 Pa.C.S. §§ 5321 – 5340), both of which

are chapters under the Domestic Relations Code. When considering issues of

statutory interpretation, the applicable standard of review is de novo and our

scope of review is plenary.” C.H.L. v. W.D.L., 214 A.3d 1272, 1280

(Pa.Super. 2019) (citations altered or omitted).

In C.H.L., this Court held “that a PFA court need not conduct a best

interests custody analysis to award temporary custody as [a] form of relief

under [§] 6108 of the [PFA] Act.” Id. at 1281 (emphasis in original). In so

holding, we observed:

[A] temporary custody provision in a PFA order is just like any other interim custody order. Section 5323(b) of the Child Custody Act makes clear that interim custody orders are not the types of custody awards necessitating a [sixteen]-factor, best interests analysis under [§] 5328(a). Often, it will be reasonable and necessary for the trial court to institute a temporary arrangement as a stopgap during litigation. It is well-settled that [a] trial court has authority to award custody on a temporary basis so that it

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may address emergency situations and protect a child until a final custody hearing can be held, when a permanent order can be entered.

Id. at 1283 (cleaned up). Put simply, we concluded that “[t]he best interests

mandate only applies to final custody awards, not temporary solutions to

emergencies.” Id. This holding was fully cognizant of the concern expressed

by Husband’s accusations against Wife’s motives in filing the instant PFA

petition. To wit, we opined:

We recognize the apprehension that some could exploit the PFA Act, i.e. that dishonest parents might utilize a protection order as a vehicle to bypass the Child Custody Act and obtain a backdoor custody modification. The Domestic Relations Code accounts for the potential exploitation by separating the custody issue into two inquiries: first, a PFA court addresses the exigent risk of abuse posed to the child as well as the petitioner; thereafter, the custody court determines the child’s best interests. This procedure safeguards the rights [of] both parties in their dual roles as PFA litigants and as parents.7 ______ 7 In larger counties where the courts have been able to

adopt a “one family, one judge” policy, this process is all the more seamless.

Id. at 1284.

In light of this binding precedent, we have no cause to disturb the

custody portion of the PFA order. Plainly, the PFA court was permitted to

temporarily modify custody, without regard for the § 5328 factors, to address

the emergency presented by the PFA petition until a formal custody order

could be entered on the custody docket. Id. Furthermore, we note that the

same judge was assigned to the PFA proceedings and the ongoing custody

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litigation, thereby mitigating against the possibility of either party exploiting

the PFA Act in adjudicating custody of their children.

Based on the foregoing, we affirm the final PFA order.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/29/2025

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