Tsarouhis, D. v. Catrickes, M.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

DEMETRIOS TSAROUHIS : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellant :

:

:

v. :

:

:

MELANIE CATRICKES : No. 604 EDA 2024

Appeal from the Order Entered January 26, 2024 In the Court of Common Pleas of Lehigh County Civil Division at No(s):

2011-FC-1577

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J. MEMORANDUM BY DUBOW, J.: FILED OCTOBER 30, 2024 Appellant, Demetrios Tsarouhis (“Father”), appeals from the January 26, 2024 order entered in the Lehigh County Court of Common Pleas that, inter alia, awarded Father shared legal custody and partial physical custody of his 13-year-old triplet daughters, S.T., D.T., and P.T. (collectively, “Daughters”), found Appellee, Melanie Catrickes (“Mother”), to be in contempt of the trial court’s orders, and ordered Mother to pay $20,000 in attorney’s fees to Father. Father raises challenges to the weight of the evidence with regards to the court’s custody determination and further argues that the trial court did not adequately sanction Mother for contempt. Upon review, we affirm.

In his January 26, 2024 Memorandum Opinion (“Opinion”), the Honorable Thomas M. Caffrey authored a thorough and accurate procedural and factual history in this highly contentious case, which we adopt for purposes of this appeal. See Trial Ct. Op., 1/26/24, at 1-27. In sum, Mother

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and Father were married in 2005, separated in 2011, and divorced in 2018. The separation was prompted by Mother’s allegations that Father physically assaulted her in November 2011. Father denies the allegations, but pleaded guilty to Simple Assault on February 23, 2012, and agreed to a protection from abuse order on January 17, 2012.

Mother and Father have four children, including 15-year-old C.T. (“Son”)

and Daughters (collectively, “Children”). From 2012 to 2019, Mother and Father had shared legal custody, Mother had primary physical custody, and Father had partial physical custody of Children.

In July 2020, Mother filed a petition to modify custody requesting that Son be removed from her home and placed with Father. Mother also abruptly terminated Father’s visitation with Daughters. This prompted numerous petitions for modification, contempt, and special relief over the next four years. According to Father, Mother had repeatedly called the police regarding Son from ages 8 to 12 years old, Son is happy in Father’s home, and Son would like to participate in therapy and reunify with Daughters and Mother. According to Mother, Daughters disclosed that Father would sneak meat into their food even though they were vegetarians, crack Daughter’s knuckles against their will, force them to watch R-rated movies when they were 6 years old, hit Daughters with a belt, lock Daughters in a room, tickle Daughters even though they asked him to stop, put Daughters’ fingers up his nose, and made Daughters’ sleep in bed with him in his underwear. Father denies most of the allegations, with the exception that he admits that he and Daughters would

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all watch movies in his bed when he was dressed appropriately. According to Daughters, Son threatened and physically hurt them when they were living together, including threatening to kill them in their sleep, pulling their hair, punching and kicking them, calling them names and teasing them, not letting them in his room, and turning off lights to scare them. Father and Son deny these claims. Father and Son would both like to have contact with Daughters.

In December 2020, the trial court appointed Ronald Esteve, Ph.D., to conduct a custody evaluation. Mother did not fully cooperate. Dr. Esteve was not able to produce a complete evaluation, but recommended reunification and co-parent therapy, prompting the court to order Mother to cooperate. In December 2021, the court appointed Otto Psychological Associates to provide reunification and co-parent therapy to the family. In February 2021, the court issued an interim custody order granting Father: sole legal and primary physical custody of Son and partial custody of Daughters. The court granted Mother: sole legal and primary custody of Daughters, and partial physical custody of Son. The parties continued to file numerous petitions. In March 2023, the court ordered Otto Psychological Associates to commence reunification therapy.

In June 2023, the court appointed guardian ad litem (“GAL”) for Children. Mother initially refused to cooperate with the GAL, coached the Daughters, and secretly recorded the meetings between Daughters and the GAL. Mother also allowed Daughters to read the GAL’s reports.

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The court held hearings on June 22, 2023, July 10, 2023, July 17, 2023, August 14, 2023, September 14, 2023, October 5, 2023, October 30, 2023, and December 14, 2023, to resolve numerous outstanding petitions for modification, contempt, and special relief.

On January 26, 2024, after considering the 23 Pa.C.S. § 5328 custody factors and the best interest of Children, the trial court entered a custody order, which awarded: 1) Parents shared legal custody of Children; 2) Father primary physical custody of Son; 3) Mother supervised physical custody of Son every other Saturday from 12:00 PM to 6:00 PM for six months supervised by a family therapy provider, then after six months partial physical custody of Son every other weekend with Daughters present; 4) Mother primary physical custody of Daughters; and 5) Father supervised physical custody of Daughters every other Saturday from 12:00 PM to 6:00 PM for six months supervised by a family therapy provider, then after six months partial physical custody of Daughters every other weekend with Son present. The court also ordered Mother and Father to enroll in co-parenting counseling and individual therapy, Children to continue or enroll in individual therapy, and everyone to participate in intense family therapy.

On the same day, the court found Father in contempt on two of Mother’s contempt petitions and ordered him to pay an aggregate fine of $500. In turn, the court found Mother in contempt on five on Father’s contempt petitions, which arose from Mother’s refusal to permit Father to visit Daughters, as well as her ongoing refusal to participate in court-ordered co-parenting or

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reunification therapy. The court ordered Mother to pay $20,000 in attorney’s fees to Father.

Father timely appealed. Both Father and the trial court complied with Rule 1925.

Father raises the following issues1 for our review:

1. The trial court erred as a matter of law and abused its discretion when it did not give sufficient weight to the testimony and recommendations of the [GAL] that [Children] should be placed in Father’s custody as they are being traumatized while living with Mother.

2. The trial court erred as a matter of law and abused its discretion when it did not give sufficient weight to the testimony and recommendations of the court-appointed expert, Dr. Ronald Esteve, Ph.D., who performed a custody evaluation, that [Children] should be placed in Father’s custody as they are being currently traumatized while living with Mother.

3. The trial court erred as a matter of law and abused its discretion in not awarding Father sole legal custody and sole physical custody of [Children] despite the trial court concluding that Mother was actively trying to turn [Children] against Father.

4. The trial court erred as a matter of law and abused its discretion in not awarding Father sole legal custody and sole physical custody despite the trial court concluding that there were numerous occasions where Mother failed to cooperate with regard to the co-parenting and reunification process.

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1 In the statement of questions section of his brief to this Court, Father raises

a sole issue for our review: “Did the trial court commit an error of law and abuse its discretion by denying Father’s request for sole legal custody and sole physical custody of Children?” Father’s Br. at 13. However, Father divides his argument section into seven subsections with issue subheadings, all of which he preserved in his Rule 1925(b) statement. Accordingly, we will address each of the issues Father’s raises in his argument section.

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5. The trial court erred as a matter of law and abused its discretion in not awarding Father sole legal and sole physical custody of [Children] despite the trial court concluding that there were numerous occasions where Mother violated the court orders

6. The trial court erred as a matter of law and abused its discretion in not awarding Father sole legal custody and sole physical custody of [Children] despite the trial court concluding that Father was clearly the parent that is more likely to encourage and permit frequent and continuing contact between [Children]

and Mother.

7. The trial court erred as a matter of law and abused its discretion in failing to adequately sanction Mother for her contemptuous conduct in violation of the court’s orders pursuant to 23 Pa.C.S.[] § 5323(g).

Appellant’s Br. at 27, 32, 35, 41, 46, 55, 57 (some capitalization omitted).

A.

This Court reviews a custody determination for an abuse of discretion and our scope of review is broad. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014). This Court will not find an abuse of discretion “merely because a reviewing court would have reached a different conclusion.” In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We must accept the findings of the trial court that the evidence supports. S.W.D., 96 A.3d at 400. Importantly, “[o]n issues of credibility and weight of the evidence, we defer to the findings of the trial judge who has had the opportunity to observe the proceedings and demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation omitted). We can interfere only where the “custody order is manifestly unreasonable as shown by the evidence of record.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). Further, in a custody case, relief is not warranted unless the party claiming error suffered

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prejudice from the mistake. J.C. v. K.C., 179 A.3d 1124, 1129-30 (Pa. Super. 2018).

When reviewing child custody matters, our “paramount concern and the polestar of our analysis” is the best interests of the child. Saintz, 902 A.2d at 512 (citation omitted). “The best-interests standard, decided on a case- by-case basis, considers all factors which legitimately have an effect upon the child’s physical, intellectual, moral, and spiritual well-being.” D.K.D. v. A.L.C., 141 A.3d 566, 572 (Pa. Super. 2016) (citations omitted). “Common sense dictates that trial courts should strive, all other things being equal, to assure that a child maintains a healthy relationship with both of his or her parents, and that the parents work together to raise their child.” S.C.B. v. J.S.B., 218 A.3d 905, 916 (Pa. Super. 2019).

The trial court “shall determine the best interest of the child by considering all relevant factors, giving substantial weighted consideration to the factors . . . which affect the safety of the child,” including the seventeen factors mandated by the Custody Act. 23 Pa.C.S. § 5328(a). The court must “delineate the reasons for its decision[.]” Id. at § 5323(d). Finally, in any action regarding the custody of the child between the parents of the child, there shall be no presumption that custody should be awarded to a particular parent and no preference based upon gender. 23 Pa.C.S. §§ 5327(a) and 5328(b).

B.

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Father’s first six claims raise challenges to the weight of the evidence and fail to garner him relief. In accordance with our well settled standard of review, we defer to the trial court on issues of weight and credibility. The Honorable Thomas M. Caffrey has authored a comprehensive, thorough, and well-reasoned Opinion, including discussion of relevant law, and has engaged in an analysis of each of the Section 5328 custody factors and made specific findings regarding each factor, which the record supports. Trial Ct. Op. at 27- 45. After a thorough review of the parties’ briefs, the applicable law, and the trial court’s Opinion, we conclude that there is no merit to the issues that Father has raised on appeal and, thus, discern no abuse of discretion. Accordingly, we adopt the trial court’s analysis as our own and affirm on the basis of the trial court’s January 26, 2024 Opinion. Id. at 1-45 (relaying a thorough factual and procedural history, providing an accurate summary of the evidence, considering all of the Section 5328 custody factors, and finding that it was in Daughters’ best interest to award Father shared legal custody and partial physical custody, and specifically ordering therapeutic visitation with Father for a period of six-months).

D.

In his last issue, Father avers that the trial court abused its discretion when it failed to adequately sanction Mother after finding her in contempt of the court’s orders. Father’s Br. at 57. Father argues that the trial court should not only have imposed fines and attorney fees, but also should have

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imprisoned Mother for her contemptuous conduct and granted him sole physical custody of Daughters. Id. at 60-61.

We review a contempt order for a “clear abuse of discretion.”

Chrysczanavicz v. Chrysczanavicz, 796 A.2d 366, 368 (Pa. Super. 2002) (citation omitted). We give great deference to the trial court’s findings. Id. Our review is, thus, “confined to a determination of whether the facts support the trial court’s decision.” Id. at 368-69 (citation omitted). Section 5323 provides that failure to comply with a custody order resulting in contempt is punishable by “any one or more” of the following: imprisonment, a fine, probation, an order for “nonrenewal, suspension or denial of” a driver's license, or counsel fees and costs. 23 Pa.C.S. § 5323(g)(1).

Instantly, the trial court found that Mother’s conduct “constituted an egregious interference on her part with Father's custodial rights. Therefore, Mother is adjudged in contempt and shall pay Father $20,000.00 in attorney's fees within 180 days of the entry of the Custody Order.” Trial Ct. Op. at 49. Upon review, we conclude that the court properly exercised its discretion in ordering Mother to pay $20,000 in attorney’s fees, relief that is cognizable under Section 5323, as the sole sanction for her conduct. As explained above, we give great deference to the trial court, and we find no abuse of discretion as the record supports the trial court’s findings.

E.

In sum, the trial court did not err when it entered the January 6, 2024 custody order after considering the Section 5328 custody factors. Father’s

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challenges to the weight of the evidence fail to garner him relief. Moreover, the trial court ordered a permitted sanction for Mother’s contemptuous conduct and the record supports the court’s findings. Accordingly, we find no abuse of discretion.

All parties are instructed to attach a copy of the January 26, 2024 trial court Opinion to all future filings.

Order affirmed.

President Judge Lazarus joins the memorandum.

President Judge Emeritus Panella joins the memorandum and files a concurring statement in which President Judge Lazarus joins.

Date: 10/30/2024

Circulated 10/08/2024 01:56 PM