J-A06031-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
NICOLE R. SMITH : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER N. KOCHER : : Appellant : No. 964 WDA 2023
Appeal from the Order Entered August 18, 2023 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD-17-003323-017
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.
MEMORANDUM BY BECK, J.: FILED: March 25, 2024
Christopher N. Kocher (“Father”) appeals from the custody modification
order related to L.K. (“Child”), born in June 2014, which awarded Nicole R.
Smith (“Mother”) and Father shared legal custody and Mother primary physical
custody of Child during the school year and Father primary physical custody
of Child during the summer.1 Father raises various claims regarding the trial
court’s credibility determinations, argues that trial court should have
____________________________________________
1 Although this appeal involves a custody action, we will use the parties’ names
in the caption “as they appeared on the record of the trial court at the time the appeal was taken.” Pa.R.A.P. 904(b)(1). “[U]pon application of a party and for cause shown, an appellate court may exercise its discretion to use the initials of the parties in the caption based upon the sensitive nature of the facts included in the case record and the best interest of the child.” Pa.R.A.P. 904(b)(2); see also Pa.R.A.P. 907(a). Neither party applied for the use of initials in the caption. We will, however, refer to the minor involved in this custody dispute as “Child” to protect her identity. J-A06031-24
maintained the prior custody determination made by a different judge and
further limited Mother’s custodial time, and asserts that the trial court abused
its discretion in failing to allocate a portion of the cost of the psychological
evaluation to Mother. After review, we affirm.
Mother and Father were in a relationship starting in March 2013 but
never married. The parties had Child in June 2014. They ended their
relationship in December 2016 but lived together until February 2017.
Following their separation, the parties lived in the same city. In March 2017,
Mother filed a custody complaint seeking primary physical custody of Child.
Thereafter, the trial court entered a consent order wherein the parties agreed
to share physical and legal custody of Child.
In January 2019, because Mother’s fiancé’s job was being transferred,
Mother filed a petition to relocate with Child to North Carolina. In April 2019,
the trial court entered an interim order permitting Mother to move with Child
to her mother’s residence in Connellsville, Pennsylvania. The trial court noted
that Mother had to arrange for housing in North Carolina pending the final
relocation hearing in the case. In May 2019, the trial court entered an order
permitting Mother to permanently relocate to Raleigh, North Carolina, and
granting Mother primary physical custody and Father partial physical custody.
Subsequently, Father filed a motion to modify custody, seeking primary
physical custody of Child. Father alleged that Mother had left her then-
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husband and moved with Child to Bridgeport, West Virginia,2 which was near
her new boyfriend, without notice.
The case proceeded to a four-day custody trial before the Honorable
Jennifer Satler. Judge Satler weighed the custody factors set forth at 23
Pa.C.S. § 5328(a),3 and found four of the custody factors (1, 4, 9, 13) favored
Father, while the remaining factors were neutral or inapplicable. Judge Satler
particularly noted that Father could provide more stability to Child, as he has
lived in his residence since 2013, while Mother had moved multiple times and
could not provide the same level of stability. Ultimately, on December 28,
2020, Judge Satler entered an order granting the parties shared legal custody,
Father primary physical custody during the school year, Mother partial
physical custody during the school year, and the parties alternating custody
week-by-week in the summer.
2 Mother indicated that four days after she moved to North Carolina, she ended
the relationship with her new husband and moved back to Pennsylvania. Shortly thereafter, she moved to Bridgeport.
3 The Custody Act provides a non-exhaustive list of the sixteen factors a court
is required to consider to determine the best interests of the child. 23 Pa.C.S. § 5328(a). “All of the best interest factors ... are required to be considered by the trial court when entering a custody order.” D.Q. v. K.K., 241 A.3d 1112, 1118 (Pa. Super. 2020) (citation and brackets omitted). The trial court, as the finder of fact, determines “which factors are most salient and critical in each particular case.” M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). Additionally, in any custody action, the trial court must “delineate the reasons for its decision on the record in open court or in a written opinion or order.” 23 Pa.C.S. § 5323(d). As Father’s appeal does not relate specifically to the trial court’s consideration of the custody factors, we do not list them here.
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In June 2021, Mother filed a petition to modify custody, seeking primary
physical custody and shared legal custody. Mother argued that she could
provide Child a stable living environment and that Father fails to coparent or
consider Mother’s custodial rights regarding Child, including prohibiting her
involvement in Child’s life. Because Judge Satler had been reassigned to the
criminal division, the case was assigned to the Honorable Nicola Henry-Taylor.
After several failed conciliations, Father filed an answer and counter-petition
to Mother’s petition, seeking sole legal custody and shared physical custody
of Child, which would grant him more time with Child in the summer and less
weekend time for Mother. In support of his counter-petition, Father indicated
that Mother disparaged him in the presence of Child and instructed Child in
Wicca4 and how to put curses on people.5 Father also filed two motions for
special relief: (1) requesting psychological evaluations of both parties, Child,
4 Wicca “is a neo-pagan, polytheistic, and pantheistic faith based on beliefs
that predate Christianity.” Knowles v. Pfister, 829 F.3d 516, 518 (7th Cir. 2016). The religion “affirms the existence of supernatural power (such as magic) and of both male and female deities who inhere in nature and that emphasizes ritual observance of seasonal and life cycles.” https://www.merriam-webster.com/dictionary/Wicca (last visited Mar. 14, 2024).
5 Notably, in West Virginia, Mother owns and operates Indigo Moon, LLC, which
the trial court describes as a “‘new age/metaphysical shop’ selling crystals, herbs, incense, and related merchandise as well as providing personal services such as tarot reading and reiki. Certain items sold at Indigo Moon are … connected with Wicca … and the business attracts a certain clientele who are favorably disposed toward Wicca.” Trial Court Opinion, 8/14/2023, at 3 (unnumbered).
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and any other essential parties and (2) requesting an order forbidding Mother
from indoctrinating Child in Wicca without his consent.
On October 28, 2022, the trial court entered an order prohibiting Mother
from exposing Child to Wicca beliefs, discussions, or events without Father’s
express consent or an order from the court. On the same date, the trial court
entered an order directing the performance of psychological evaluations with
the cost of the evaluation to be paid by Father, subject to reallocation.
The trial court appointed psychologist Patricia Pepe, Ph.D., of Allegheny
Forensics as the psychological evaluator. In conducting her evaluation, Dr.
Pepe interviewed Mother, Father, and Child; observed family interactions; was
given other collateral information from the parties, including information about
Mother’s GoFundMe crowdfunding campaign to aid in the child custody dispute
and classes offered by Indigo Moon involving Wicca; and spoke with the
coparenting mediator, Karen Firestine (“Firestine”), and Child’s therapist,
Danielle Parrish (“Parrish”). Thereafter, Dr. Pepe submitted a report and
recommendations, noting multiple concerns related to Mother engaging in
alienating behavior against Father, the amount of time Child spends at
Mother’s store, and Child’s knowledge of Mother’s GoFundMe page. Dr. Pepe
suggested restricting Mother’s custodial time with Child and awarding Father
primary legal custody and primary physical custody for longer periods.
On March 15, 2023, the parties engaged in a pretrial conciliation with
the Judge Henry-Taylor. Because they were unable to resolve matters, Judge
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Henry-Taylor scheduled a custody trial. Prior to the scheduled trial, however,
Judge Henry-Taylor recused herself sua sponte and the Honorable Chelsa
Wagner was assigned to the case. Father requested an updated psychological
evaluation because Mother’s parental alienation had worsened since Dr. Pepe’s
original evaluation of Mother. Judge Wagner denied the request.
The matter proceeded to trial at which, inter alia, Mother, Father,
Father’s fiancée, Lisa Citriniti, Firestine, and Dr. Pepe testified; Child did not
testify. Following trial, Judge Wagner discounted Dr. Pepe’s testimony and
recommendations, finding that she harbored bias against Mother and did not
approve of Mother’s lifestyle or beliefs related to Wicca, which contributed to
her final opinion. Judge Wagner noted that there was no evidence that Mother
practiced Wicca, or how any of that information impacted Child. Additionally,
Judge Wagner found Dr. Pepe’s opinion was based upon Father’s version of
the facts, which the judge found incredible. Judge Wagner found Mother’s
testimony to be credible.
Judge Wagner weighed the custody factors set forth at section 5328(a),
and found five of the custody factors (1, 4, 9, 10, 13) favored Mother, factor
(2) favored Father, and the remaining factors were neutral or inapplicable.
Ultimately, Judge Wagner entered an order awarding the parties shared legal
custody, Mother primary physical custody and Father partial physical custody
of Child during the school year, and Father primary physical custody and
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Mother partial physical custody of Child during the summer. Father filed a
timely appeal and a Pa.R.A.P. 1925(b) concise statement.
Father raises the following questions for our review:
1. Did the Trial Court erred [sic] and/or abuse its discretion in “discounting and disregarding” the testimony, Evaluation and Recommendations of its own witness, sua sponte, after Trial when no grounds for impeachment were raised during Trial[?]
2. Did the [Trial] Court err and/or abuse its discretion in determining, sua sponte, that L.K could know about Court Proceedings and Father’s testimony on her own and that there was no parental alienation as indicated by the Court’s own expert witness, whenever the Court did not even interview L.K.[?]
3. Did the [Trial] Court err and/or abuse its discretion in not only discounting and disregarding the Evaluation and Recommendations of his own expert witness, but totally reversing the Honorable Jennifer Satler’s Order of Court and granting Mother primary physical Custody of L.K. when the Court’s Expert’s Recommendation was that Mother’s custodial time should be limited due to her parental alienation[?]
4. Did the Trial Court err and/or abuse its discretion in not allocating a portion of the cost of the Psychological Evaluation to Mother[?]
Father’s Brief at 4-5.
Our standard of review in this case is deferential:
We review a trial court’s determination in a custody case for an abuse of discretion, and our scope of review is broad. Because we cannot make independent factual determinations, we must accept the findings of the trial court that are supported by the evidence. We defer to the trial judge regarding credibility and the weight of the evidence. The trial judge’s deductions or inferences from its factual findings, however, do not bind this Court. We may reject the trial court’s conclusions only if they involve an error of law or are unreasonable in light of its factual findings.
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C.A.J. v. D.S.M., 136 A.3d 504, 506 (Pa. Super. 2016) (citation omitted).
“With any child custody case, the paramount concern is the best
interests of the child.” M.J.M., 63 A.3d at 334 (citation omitted). “This
standard requires a case-by-case assessment of all the factors that may
legitimately affect the physical, intellectual, moral and spiritual well-being of
the child.” Id. (citation omitted).
In his first claim, Father contends that the trial court abused its
discretion in discounting and disregarding Dr. Pepe’s testimony. Father’s Brief
at 14. Father argues that the trial court’s finding that the psychologist was
biased against Mother and unduly focused on Mother’s connection to Wicca or
Satanism is not supported by the record. Id. at 15, 18, 20-21. Father states
that Dr. Pepe did not testify to any of these topics during direct examination
and were barely mentioned in her report. Id. at 15-16. According to Father,
it is the trial court, not the psychologist, who repeatedly mentioned Wicca and
Satanism in its Rule 1925(a) opinion. See id. at 18. Father asserts that he
testified to Wicca events because Mother had disregarded a prior order
entered by Judge Henry-Taylor, which prevented Mother from exposing Child
to Wicca beliefs or discussion without Father’s consent or order of the court.
Id. at 17; see also id. (noting that Father and Mother had shared legal
custody and they had to discuss any religious decisions). Father also claims
that the trial court could not impeach its own expert witness because she
testified consistent with her report. Id. at 18-21. Likewise, Father argues the
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trial court could not have ascertained that its own witness was biased, as it
did not question or discredit her. Id. at 18, 20-21.
We have previously discussed the interplay between the trial court and
a testifying expert in a child custody matter:
The trial court [is] under no obligation to delegate its decision-making authority to [an expert witness]. It is an abuse of discretion, however, for a trial court to dismiss as unpersuasive, and to totally discount, uncontradicted expert testimony. Accordingly, while a trial court is not required to accept the conclusions of an expert witness in a child custody case, 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) (en banc) (citations and
quotation marks omitted).
Regarding Dr. Pepe’s references to Wicca and Satanism, we observe the
following from the expert report submitted into evidence:
Events [at Indigo Moon] include “New Moon” events, seemingly occurring late at night. Included are classes related to Wicca. Included in the flyer [provided to the psychologist by Father] are images of pentagrams, which is often used to represent Satanism. I cannot imagine an eight-year-old exposed to such symbolism and how she makes sense of the image. While I am making every attempt to be open minded and objective, I just cannot help being concerned of the potential impact on a young child.
***
I am not being biased toward the position of Wicca. It is defined as a modern syncretic, pagan religion. And certainly, we have a right to religious freedom. My concern is using pentagrams on the advertisements for [Mother’s] classes. A pentagram is drawing a circle around the five points used by Wiccans and in paganism. And while it may be innocuous, it is also the most
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notable and widespread symbol of Satanism. I simply cannot imagine what impact this symbolism has for an eight-year-old child.
Father’s Exhibit V (Dr. Pepe Report), at 17, 19.
During her testimony, Dr. Pepe made a single reference to Wicca, which
occurred on cross-examination by Mother’s counsel6 in response to a question
about her conversations with the coparenting counselor:
What I said to [the coparenting mediator], what we discussed is what I wrote in my summary. I did ask her, which I don’t have in my summary, … what her thoughts were about the implications of [W]icca and did she have concerns about that and were any of those issues topics in co-parenting.
Id. at 239. Dr. Pepe did not recall what the coparenting counselor stated but
noted that she wrote her summary with this information. Id.
The record further reflects that the parties extensively introduced
evidence regarding Mother’s exposure of the Child to Wicca throughout trial,
including citing the order entered by Judge Nicola-Taylor prohibiting Mother
from talking about Wicca. See, e.g., N.T., 6/30/2023, at 31, 32, 39, 41, 68-
69, 70-71, 140, and N.T., 6/29/2023, at 210-11, 215 (various references to
Wicca during Father’s testimony); N.T., 6/29/2023, at 165-66, 174-75
(Firestine’s testimony about Father’s concerns about Wicca); N.T., 6/27/2023,
at 30-32, 39, 68, 167-71, 180-81, 189-90, 213-16, 229-30, 232 (Mother
responded to questions during direct and cross-examination regarding Wicca,
6 Father called Dr. Pepe as a witness and Mother cross-examined Dr. Pepe.
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and Mother stated that she is not a Wiccan, paganist, or Satanist); see also
N.T., 6/30/2023, at 33 (wherein the trial court indicated the issue of Child’s
exposure to Wicca was before the court).
Father sought to make Mother’s exposure of Child to Wicca and the
nature of Mother’s business/clientele an issue of concern in the case and a
basis for the trial court to reject Mother’s request for increased custodial time
with Child. The trial court, however, found that Father offered no credible
evidence that exposure to Wicca caused any detriment to Child. Trial Court
Opinion, 10/23/2023, at 15-16. Notably, the trial court determined that there
was no evidence that Mother follows or practices Wicca, finding Mother’s
testimony on this topic to be credible. See id. at 7; Memorandum and Order,
8/14/2023, at 21 (unnumbered); see also N.T., 6/27/2023, at 30, 216.
The issue of Child’s exposure to Wicca was raised throughout the trial,
including through the psychologist’s report and testimony, and the trial court
was free to weigh this evidence and the credibility of those who presented it
in rendering its decision. Throughout his brief, Father essentially asks us to
reject the trial court’s findings and credibility determinations in favor of the
factual findings and credibility determinations that he proposes and to reweigh
the evidence in his favor. This we cannot do. See S.C.B. v. J.S.B., 218 A.3d
905, 913-14 (Pa. Super. 2019) (“[W]ith 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.”). The trial court’s credibility
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determinations regarding Mother’s exposure of Child to Wicca are supported
by testimony presented at trial, and it is not the role of this Court to make
independent factual determinations. See M.J.M., 63 A.3d at 337 (noting
“[w]e 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.”) (citation omitted).
Turning to Father’s argument that the trial court could not impeach the
court-appointed expert, as noted above, the trial court was under no
obligation to accept the conclusions of the expert so long as the court’s
findings are supported by the competent evidence. See M.A.T., 989 A.2d at
20. The trial court found that the psychologist’s ultimate conclusions lacked
credibility, emphasizing that her opinions mirrored Father’s version of the
facts, which the court had found incredible. See Trial Court Opinion,
10/23/2023, at 5; Memorandum and Order, 8/14/2023, at 17-18
(unnumbered). Indeed, in addition to its credibility determinations regarding
the evidence related to Child’s exposure to Wicca, the trial court was troubled
by the fact that the expert did not communicate with Child’s therapist, Parrish,
until the day she completed the report, and her failure to request or review
records and notes from the parties’ coparenting sessions. See Trial Court
Opinion, 10/23/2023, at 5, 30-31 (noting Dr. Pepe did not obtain Parrish’s
treatment records and did not contact Parrish until the day she authored the
evaluation); 31 (stating that Dr. Pepe’s recommendations were made in a
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factual vacuum without considering the records of Child); see also N.T.,
6/30/2023, at 222-23, 243-44. Further, the trial court highlighted that the
expert failed to account in her recommendation how the increased custodial
time with Father would have impacted Child’s relationship with Mother. See
Memorandum and Opinion, 8/14/2023, at 17-18, 19 (unnumbered).
Moreover, the trial court found credible Mother’s testimony that she
would encourage Child’s contact with Father when she had custody; that she
had difficulty obtaining information about Child from Father and
communicating with Child while she is in Father’s care; that she does not
denigrate Father in Child’s presence; that she could help Child with her
homework and manage her dyslexia; and that she and Child had a strong
emotional bond. See Trial Court Opinion, 10/23/2023, at 12, 13, 14, 24, 27;
Memorandum and Order, 8/14/2023, at 5, 6 (unnumbered); see also N.T.,
6/27/2023, at 44-46, 52-53 (difficulty in receiving information about Child),
54-55 (noting that Child rarely calls her when in Father’s care), 60-64, 140-
42, 146-47 (wherein Mother testified that she strives not to denigrate Father
in Child’s presence and wants Child to maintain a bond with Father), 127-28,
129, 132-33 (Mother testified that she aids Child with her homework as well
as manages Child’s dyslexia), 153 (Mother testifying about close bond with
Child). The trial court additionally found Firestine’s testimony confirmed its
credibility findings as to Mother, noting that Firestine did not find Mother to
be uncooperative or contentious any more than Father was, and that Mother
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appeared ready and willing to compromise with Father on contentious matters.
See Trial Court Opinion, 10/23/2023, at 3, 29.
Given that the trial court found Mother credible, it was not manifestly
unreasonable for the trial court to have declined to follow Dr. Pepe’s
recommendation, as the recommendation would have provided Father
primary physical and legal custody of Child and less custodial time for Mother.
Considering the animosity between the parties, and Child’s love of both Mother
and Father, the trial court found that Mother exercising primary physical
custody during the school year and Father during the summer provides Child
the best opportunity to spend meaningful time with both parents. See
Memorandum and Order, 8/14/2023, at 20 (unnumbered); see also Trial
Court Opinion, 10/23/2023, at 8-9 (noting that the new custody arrangement
allows Father to exercise time on the weekends when he is not working); 12
(finding that the custody order is in Child’s best interests, as she loves both
parents). To that end, the trial court considered the custody factors under
section 5328(a), and there is support in the record for its decision. See
C.A.J., 136 A.3d at 506 (“We may reject the trial court’s conclusions only if
they involve an error of law or are unreasonable in light of its factual
findings.”) (citation omitted). Therefore, while the trial court considered Dr.
Pepe’s opinion, it found her recommendation to be unavailing in conjunction
with the other evidence presented. See M.A.T., 989 A.2d at 20. Accordingly,
we cannot grant Father relief on his first claim. See E.B. v. D.B., 209 A.3d
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451, 469 (Pa. Super. 2019) (noting that “it is not this Court's function to
determine whether the trial court reached the ‘right’ decision; rather, we must
consider whether, ‘based on the evidence presented, given due deference to
the trial court's weight and credibility determinations,' the trial court erred or
abused its discretion in awarding custody to the prevailing party.”) (citation
omitted).
In his second claim, Father contends that the trial court abused its
discretion in determining that there was no parental alienation and sua sponte
finding that Child had independent knowledge of the custody proceedings.
Father’s Brief at 21, 32. Father cites Dr. Pepe’s report, noting that both Dr.
Pepe and Child’s therapist, Parrish, indicated they were concerned about
Mother’s alienation of Father, which could damage Child’s relationship with
him. Id. at 22-25, 28, 29-32. To that end, Father takes issue with the trial
court’s finding that because the only evidence of alienation was related to the
court litigation (and not negative statements about Father, his fiancée, or his
family), that this somehow meant the behavior was not “parental alienation.”
Id. at 28, 32. Father highlights that in her testimony, Firestine could not
opine whether Child was being alienated because she did not know whether
comments made by Child about the custody proceedings were based upon her
own perception of her parents’ relationship and what was occurring or if Child
was parroting statements Mother made. Id. at 31-32. Father claims that
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Firestine’s testimony meant that the trial court could not make a ruling on
alienation without hearing testimony from Child. Id. at 32.
Additionally, Father notes that Dr. Pepe testified that Child knew too
much about the custody dispute, including that Father makes more money
than Mother, the anger between the parties, and the number of significant
others each party has had since they separated. Id. at 26-27, 30. Father
also emphasizes Dr. Pepe’s testimony that Child is physically aggressive with
Mother, which reflected a lack of empathy and unresolved anger. Id. at 28-
29.
The trial court found that neither party “has intentionally or purposefully
acted in a manner that seeks to alienate [Child] or turn her against a party.”
Memorandum and Order, 8/14/2023, at 11 (unnumbered). The trial court
further stated the following:
Father offered evidence and testimony seeking to show that Mother has engaged in behavior designed to alienate the child from him. Father’s contentions were supported by the custody evaluator, Dr. Pepe, who opined that the child “knew too much” about the litigation, the claims of the parties and the role of the judge. Testimony was offered about the child stating that “Daddy lied to the judge,” as the reason that Father obtained primary custody. Additionally, Father submitted evidence about a fundraiser held on behalf of Mother to raise money for her legal fees called “Bring our Girl Home.” Evidence suggests that [Child] knew about this fundraiser and its purpose, i.e., to allow Mother to regain custody. Father likewise attributes [Child’s] negative outbursts in the house to what she is being told about him while in Mother’s custody. For instance, [Child] has said, in a negative way, “You are not my mom” to [Citriniti], the fiancée.
Mother testified to her efforts to consistently portray Father in a favorable light. Mother denied providing [Child] with
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information about the lawsuit, positing that [Child’s] knowledge of the legal process stems from the fact that [Child] understands that “something” happened in [c]ourt that caused her to move from West Virginia with Mother into Father’s custody in Pennsylvania – and that that “something” was not the decision of either parent.
… [T]he [trial c]ourt did not ascertain any direct evidence showing Mother engaged in alienating behavior. To the contrary, from the evidence reviewed by the [trial c]ourt it appears that [Child] has positive feelings toward Father, loving both her parents very much and wishing they could “get back together.” If [Child] does, indeed, have more information about these legal proceedings than she should, the [trial c]ourt did not hear evidence showing that it has negatively impacted her relationship with Father. On this score, the [trial c]ourt believes that Father is once again seeking to attribute every negative occurrence or interaction to something done by Mother. The [trial c]ourt does not find the testimony of Father and his witnesses and the custody evaluator to be credible under this factor.
Id. at 17-18 (unnumbered).
As discussed above, the trial court found the psychologist’s testimony
to be incredible. See id. at 17-20 (unnumbered); see also Trial Court
Opinion, 10/23/23, at 4-5, 24. Further, the trial court found no evidence of
ongoing parental alienation, noting that although Father stated that Child
knew about the custody proceedings after visiting Mother, he refused to
provide any specific evidence or testimony of what Child would say about the
custody proceedings after her custodial visits with Mother. See Trial Court
Opinion, 10/23/2023, at 23-25; id. at 25 (finding Father’s testimony in this
regard to be incredible); see also N.T., 6/30/2023, at 153-58; N.T.,
6/29/2023, at 262-64. The trial court found credible Mother’s testimony that
she did not alienate Child against Father. See Trial Court Opinion,
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10/23/2023, at 3-4, 12-13 (determining that Mother credibly testified that
Mother would continue to support Father’s role in Child’s life); 24 (crediting
Mother’s testimony that she did not alienate Child against Father); see also
N.T., 6/27/2023, at 58-65. The trial court also observed that Firestine did not
find Mother to be uncooperative or contentious to any greater degree than
Father, and that Mother was willing to compromise with Father on contentious
matters. See Trial Court Opinion, 10/23/2023, at 3, 29. Although Father
blamed Mother’s attempts at alienation for the problems Child is experiencing,
the trial court found that Child’s trauma is based upon the parties’ conflict, not
any information about the custody dispute. See id. at 23; see also id. at 12
(citing testimony by Dr. Pepe stating that Child is suffering because her
parents cannot get along).
We reiterate that we must defer to the factfinder for issues concerning
credibility and weight of the evidence. See M.J.M., 63 A.3d at 337. Here,
Father again appears to be requesting that this Court make new factual
findings or to reweigh the evidence and testimony presented by Dr. Pepe and
Firestine. Once again, we decline to do so. See C.R.F. v. S.E.F., 45 A.3d
441, 443 (Pa. Super. 2012) (noting this Court 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.”) (citation
omitted); see also A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (“The
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parties cannot dictate the amount of weight the trial court places on
evidence.”). Accordingly, we cannot grant Father relief on his second claim.
In this third claim, Father contends that the trial court abused its
discretion by reversing Judge Satler’s original custody determination and
ignoring the expert’s recommendation that Mother’s custodial time be limited.
Father’s Brief at 33. Father argues that after Dr. Pepe released her report,
Mother’s alienation of Child became worse, but the trial court refused his
request for a new evaluation. Id. at 33-34. According to Father, in advocating
for less custodial time for Mother he was merely following Dr. Pepe’s
recommendations, which invited the trial court’s disdain of him and resulted
in him being guilty by association with the psychologist. Id. at 34-35.
Additionally, Father argues the trial court evidenced bias against him by calling
the proposed order he submitted “Draconian’,” and comparing “Father’s
motives to salad being on the menu at Domino’s.” 7 Id. at 33. Father claims
that the trial court’s finding that the psychologist was biased was not
7 More specifically, the trial court stated that “Mother’s custodial proposal strikes a note of optimism and magnanimity; Father’s is punitive and draconian.” Memorandum and Order, 8/14/2023, at 15. Further, as to the Domino’s menu simile, the trial court stated: “In his Statement of Matters Complained of on Appeal, Father posits that he only sought this order to protect L.K. from ‘Parental Alienation.’ Father’s proposed order is no more about the prevention of parental alienation than the Domino’s Pizza Menu is about salad — it may be on the menu, but it is far from the point.” Trial Court Opinion, 10/23/2023, at 32-33.
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supported by the competent evidence and he seeks the entry of a new order,
which follows Dr. Pepe’s recommendations. Id. at 36.
Preliminarily, we observe that Father cites to no case law to support
this contention. See Pa.R.A.P. 2119(a) (stating that the appellant’s argument
must be supported by pertinent citation to authority). The failure to do so
waives the claim raised on appeal. See C.H.L. v. W.D.L., 214 A.3d 1272,
1276 (Pa. Super. 2019) (“It is well-established that the failure to develop an
argument with citation to, and analysis of, pertinent authority results in waiver
of that issue on appeal.”).
Even if not waived, we reject Father’s contention that Judge Wagner
could not enter a modified custody order that differed from the existing
custody order entered by Judge Satler. “Upon petition, a court may modify a
custody order to serve the best interest of the child.” 23 Pa.C.S. § 5338(a);
see also J.P. v. J.S., 214 A.3d 1284, 1290 (Pa. Super. 2019) (“Petitions for
modification of custody orders may be entertained at any time without regard
to whether there have been any material changes which would warrant a
reevaluation.”) (citation omitted). Judge Wagner was not bound by Judge
Satler’s determination because she found modification was in Child’s best
interest. See K.D. v. E.D., 267 A.3d 1215, 1224 (Pa. Super. 2021) (noting
that the trial court was not bound by a prior judge’s order because the
modification served the best interest of the children).
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At bottom, Father’s claim on appeal is that Judge Wagner was biased
against him based upon her ruling adverse to him. Although he claims bias,
he does not seek Judge Wagner’s recusal. Even if he had, it is well settled
that “[a]dverse rulings alone do not establish the requisite bias warranting
recusal, especially where the rulings are legally proper.” Arnold v. Arnold,
847 A.2d 674, 681 (Pa. Super. 2004).
Father also supports his argument with Dr. Pepe’s testimony and his
request to have such testimony reweighed in his favor. To this end, Father
seeks for this Court order that custody be modified in accord with the
evaluator’s recommendation. As repeatedly stated throughout this decision
in response to this request, we cannot reweigh Dr. Pepe’s evidence in Father’s
favor. See M.J.M., 63 A.3d at 337. Although Father correctly cites to some
harsh language in the trial court’s opinion that, in our view, is wholly
unnecessary for the disposition of the case, Father has not presented sufficient
argument to establish bias stemming from the trial court’s credibility
determinations to allow for reversal on that basis. Accordingly, we cannot
grant relief on Father’s third claim.
In his final claim, Father contends that the trial court abused its
discretion in failing to allocate a portion of the costs of psychological evaluation
to Mother. Father’s Brief at 36-37. Father argues that the cost of the court-
appointed psychologist is shared by the parties, usually in proportion of their
income. Id. at 37, 39. Father asserts that the trial court’s reasoning for
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failing to reallocate the costs—requiring Father to pay for the evaluation
because he, and not Mother, requested it, and Father was not granted the
outcome he sought—is erroneous, as the trial court appointed Dr. Pepe and
he had no idea what she would state in the report. Id. at 38-39. Father
claims that the allocation of fees has never depended on the party who gains
relief. Id. at 38. Father seeks remand for a hearing on the allocation of fees
with a new judge, as Judge Wagner made up her mind on the issue. Id. at
39-40.
Our review of a trial court’s allocation of expert fees is for an abuse of
discretion. Pavex, Inc. v. York Fed. Sav. & Loan Ass’n, 716 A.2d 640, 647
(Pa. Super. 1998).
Pennsylvania Rule of Civil Procedure 1915.8 provides, in relevant part:
The court may order the child(ren) and/or any party to submit to and fully participate in an evaluation by an appropriate expert or experts. ... In entering an order directing an evaluation pursuant to this rule, the court shall consider all appropriate factors, including the following, if applicable:
(1) the allocation of costs, including insurance coverage, if any, attendant to the undertaking of the evaluation and preparation of the resultant report and court testimony of any appointed expert[.]
Pa.R.C.P. 1915.8(1). The Rule was “intended to afford the trial court and the
parties a more flexible and case-sensitive means of determining the scope and
parameters of a physical and/or mental examination, including deadlines,
costs, underlying data, and access.” Pa.R.C.P. 1915.8, cmt.
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Here, Father does not cite to any relevant statute or case law to support
his claim that the trial court’s determination that he pay the evaluator’s fees
was an abuse of discretion. See Pa.R.A.P. 2119(a). Indeed, Father fails to
support his assertion that these fees are always divided between the parties
in a custody action in any respect. The record reflects that Father requested
the evaluation and Judge Nicola-Taylor indicated he would bear the costs of
the psychologist. Under the circumstances, we do not find that the court
abused its discretion in its allocation of expert fees to Father.
Based upon the foregoing, and the standard by which we must review
the issues raised, we find no abuse of discretion. We therefore affirm the trial
court’s order.
Order affirmed.
3/25/2024
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