Talley, R. v. Talley, D.

Superior Court of Pennsylvania

Talley, R. v. Talley, D.

Superior Court of Pennsylvania·Decided September 19, 2023·No. 267 EDA 2023·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

RACHEL TALLEY : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

DANIEL TALLEY :

:

Appellant : No. 267 EDA 2023

Appeal from the Order Entered December 20, 2022 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2008-29319

BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.* MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 19, 2023 Daniel Talley (“Father”) appeals from the court’s order denying his petitions to: (1) modify custody of the daughter (“Child”), born in 2007 to him and Rachel Talley (“Mother”);1 (2) find Mother in contempt of the existing custody order; and (3) order a custody evaluation. The court also denied Mother’s petition for fees, costs, and expenses. We affirm.

This appeal is the latest event in a fifteen-year-long custody dispute between Father and Mother. The trial court presided over a previous custody trial in 2020 and conducted an evidentiary hearing in 2022 on Father’s subsequent petitions to modify the existing custody agreement to allow him shared legal custody and more visitation; for contempt against Mother; and

* Retired Senior Judge assigned to the Superior Court.

1 Mother has remarried and uses her married name, “Welch.”

for a custody evaluation, and on Mother’s petition for fees, costs, and expenses.

At the December 2022 hearing, Mother gave the following testimony:

Child is fifteen years old and very involved with her half-sister. Child is very involved in cheer squad and tumbling. She also has a close relationship with Mother’s family. See N.T., 12/19/22, at 18-31. Mother works from home and is better able to take Child to extracurricular activities than Father, who, after a move, lives between twenty-seven and thirty miles away. See id. at 32- 40. Child does not always do her homework when at Father’s house. See id. at 44.2 Mother keeps Father fully informed of Child’s medical appointments3 and academic needs and progress through the “Our Family Wizard” app. See id. at 49-51. Father refused to take Child for a COVID test in advance of an ear surgery, which required Mother to get the test earlier and obtain a waiver of the rule that a patient must be COVID-tested within forty-eight hours of surgery. See id. at 58-63.4

2 On multiple occasions during Mother’s testimony, Father blurted out, “That’s a lie.” See N.T., 12/19/22, at 44 (twice), 85-86.

3 Child has epilepsy and has had multiple ear surgeries. See N.T., 12/19/22, at 55-58, 63-65.

4 On cross-examination, Mother testified that Father’s uncooperativeness before she obtained sole legal custody of Child prevented her from taking Child to an ENT, which complicated the Child’s treatment for her ear problem. See id. at 103-04.

Mother also testified: she and Father had a dispute about custody when she was on vacation with Child in Maryland (“the Maryland vacation”); Father insisted on picking up Child from Mother’s home rather than Maryland and refused to give Mother less than one-day’s extra custodial hours in exchange for extra time later that week. Father threatened to call the police while Mother was driving Child home from Maryland, causing Child anxiety. In reprisal for the Maryland vacation, Father took Child on a weekend when he did not have custody. See id. at 70-79. Mother pays for all of Child’s activities and spends considerable money on legal fees to respond to Father’s various legal filings. See id. at 85-86. Mother does not criticize Father to Child. See id. at 88-91. At a school event, Child chose to use a hyphenated last name incorporating her stepfather’s name. See id. at 113-15.

Father’s friend, Michelle Houser testified that Father and Child have a good and loving relationship. See id. at 126-30. Father testified to the following: he moved to a new house to be closer to Child and is making an extra big bedroom for her. See id. at 133-41. He was not allowed to talk to Child when he was in jail and did not have contact with her for one year. See id. at 142-43. His relationship with Child improved since the 2020 custody trial,5 and with him, she is able to do things she cannot do with Mother like horseback riding, flying in a plane, going to an amusement park, and attending

5The court stated it was aware of the history of Father’s relationship with Child from the 2020 trial. See N.T., 12/19/22, at 155.

professional sporting events. Father produced photographs of Child smiling when with him to show that she was happy being with him. See id. at 145- 49. Father characterized Mother’s criticism of his being late for events as “the same kind of made-up nonsense I’ve been hearing ever since [Child] was a little kid.” See id. at 150-51. Father claimed he helped Child by phone with her homework and Mother and stepfather frequently yelled at her for being on the phone with him. See id. at 151. Father testified there were times when Child was at his house, forgot to do her homework and got a phone call from Mother, which required Child to stop everything to finish the homework. See id. at 154.

Father testified he worked with Child on things that gave her trouble, like grocery shopping and budgeting. See id. at 157-61. He asserted Mother left Child’s ear problem unaddressed for six years and deafness would have resulted had he not intervened. He also expressed his concern about Mother’s alleged lack of attention to Child’s epilepsy and seizure disorder. See id. at 164-71. He complained Mother frequently tracks Child on her phone when Child is with him. See id. at 171-72. He asserted that he is “an absolutely wonderful and amazing parent,” and Mother is manipulative and makes things up. See id. at 192, 195, 207.

Concerning his contempt petition, Father testified: he and Mother disagreed about where he would pick Child up from the Maryland vacation. He refused to pick Child up in Maryland and insisted on an equidistant meeting

point. Mother refused to compromise and extended the vacation and her custodial time by four or five hours. See id. at 174. When Mother brought Child to him, he told her he would call the police and report an alleged kidnapping, because Mother had accused him of kidnapping years before. See id. at 172-77. Father also testified he and Mother disagreed about Child’s medical care. He became angry upon learning Child used a hyphenated last name that included her Mother’s new last name at a school concert. See id. at 179-180, 182. He also testified Mother failed to communicate effectively concerning the COVID test Child was required to take prior to ear surgery. See id. at 186. He asserted Mother scheduled “hundreds of events” during his custodial time. Id. at 186-90.

The trial court spoke in camera to Child in the presence of the guardian ad litem (“GAL”). Child stated things were “going great” with Mother, and Father “got a dog, so that’s a plus.” See N.T. 12/19/22 at 4 (separate transcript). Child stated that Father forced her to go on an eight-hour road trip to three states and stay overnight in a hotel room with him to get “this freaking dog.” See id. at 4-5. She added:

I know that he’s trying to puppy guilt trip me into wanting to stay with him more, but . . . whenever we talk, there’s also that sense of, I don’t want to slip up on saying something, because I know that if I do, there’s nobody there to . . . back me up. Because . .

. I know what I want to say to him. It’s just my anxiety gets the better of me. . ..

See id. at 5. Child explained that Father reacts badly and “verbally attack[s] her by saying, ‘I’m the only person that’s ever done this kind of stuff for you.’”

See id. at 9. She compared Mother’s offers to allow Child to decide if she wanted to stay extra time with Father’s approach of “you’re staying with me, end of discussion. You don’t get to see your Mom, you don’t get to drop your stuff off at the house. You’re staying.” See id.

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