J-A27026-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
V.E.M. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : D.R.M. : : Appellant : No. 1338 EDA 2025
Appeal from the Order Entered April 24, 2025 In the Court of Common Pleas of Northampton County Civil Division at No(s): C-48-CV-2024-03437
BEFORE: BOWES, J., MURRAY, J., and BECK, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 16, 2025
In this child custody action, D.R.M. (Father) appeals, pro se, from the
order entered following a custody trial, awarding V.E.M. (Mother) sole legal
custody, and primary physical custody, of the parties’ minor children, L. (a
son born in April 2015) and S. (a son born in September 2020) (collectively,
“the Children”), subject to Father’s periods of supervised partial physical
custody. Father argues the trial court erred and violated his due process
rights, and principles of fundamental fairness, where it precluded him, a pro
se litigant, from introducing into evidence Father’s proffered documentary
evidence as a sanction for his failure to comply with an order requiring pretrial
disclosure of witnesses and exhibits. After careful review, we affirm.
Father and Mother married in April 2013, and the Children were born
during the marriage. The parties previously resided together until their J-A27026-25
separation in 2021. The parties divorced in 2022. Father currently resides in
Harper’s Ferry, West Virginia. Mother resides with the Children in
Northampton County, Pennsylvania, approximately 150 miles from Father’s
residence.
On April 18, 2024, Mother filed a pro se Petition for Emergency Relief-
Custody in Northampton County. Mother explained the parties had an existing
child custody order from the State of New York (prior custody order). Petition
for Emergency Relief-Custody, 4/18/24, ¶ 5B. Under the prior custody order,
Father had shared legal custody and partial physical custody of the Children
every other weekend, as well as for five weeks during the summer. See
Consent Order of Custody (Suffolk County, New York), 8/17/23, at 2, 6
(admitted at Father’s instant custody trial as Plaintiff’s Exhibit 1). In her
petition, Mother alleged Father had sent the Children text messages
containing inappropriate content (discussed infra), and questioned whether he
suffered from a mental illness. Petition for Emergency Relief-Custody,
4/18/24, ¶ 6. Mother sought a “custody determination suspending
communications unless supervised & suspending unsupervised visits until a
forensic psychological evaluation is completed.” Id. On the same date, the
trial court entered an interim custody order temporarily awarding Mother sole
legal and physical custody of the Children for a period of 90 days, or until
further order of court. Order, 4/18/24, at 2.
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On June 12, 2024, Father filed a counseled petition for modification of
custody.1 Father claimed he “has not seen the Children since April 7, 2024,”
and asserted he “believes it is in the best interest of the Children that the
current Order be modified to allow Father partial physical custody on [the] 1 st,
2nd and 4th weekend of every month.” Petition for Modification of Custody,
6/12/24, ¶¶ 5a, 6 (some capitalization modified).
On August 22, 2024, Mother filed an Answer and Counterclaim to
Father’s petition for modification. On the same date, the trial court entered
an interim custody order, awarding Mother sole legal custody and primary
physical custody, subject to Father’s periods of partial supervised physical
custody. Interim Order, 8/22/24, ¶¶ 1-3; see also id. ¶ 4 (permitting Father
biweekly telephone contact with the Children).
On October 15, 2024, Father, acting pro se, filed another petition for
modification of custody. According to Father,
[Mother] refused to allow [Father] visitation with [the Children] in the month of September and will only allow [Father] to speak to them on [Mother’s] designated times and dates. [Mother] is currently under [Child Protective Services (CPS)] investigation.
____________________________________________
1 Under the Child Custody Act, 23 Pa.C.S.A. §§ 5301, et seq. (the Act), “[u]pon
petition, a court may modify a custody order to serve the best interest of the child.” Id. § 5338(a); see also K.D. v. E.D., 267 A.3d 1215, 1224 (Pa. Super. 2021) (“[C]ustody matters are a special creature. Unlike other actions which have a clear beginning, middle, and end, custody orders may be repeatedly modified.” (citation and ellipses omitted)). A party requesting modification of custody has the burden to show that modification is in the child’s best interest. J.M.R. v. J.M., 1 A.3d 902, 911 (Pa. Super. 2010).
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Petition for Modification of Custody, 10/15/24. Mother filed an answer and
counterclaim. The matter was scheduled for a custody conciliation conference
on January 16, 2025, before Custody Master Briana Gaumer, Esquire (Master
Gaumer). See Praecipe for Custody Master Conference, 11/27/24.
On January 17, 2025, the trial court entered an order “by agreement of
the parties at a conference before [] Master … Gaumer[.]” Order, 1/17/25. 2
The order scheduled a custody trial for April 21, 2025. Id. ¶ 1. Significantly,
the order contained the following provision:
Pretrial Exchanges. The parties shall exchange expert reports and lists of exhibits and witnesses on or before ten (10) days before [t]rial. All exhibits shall be pre-marked at the time of exhibit exchange and trial.
Id. ¶ 3 (emphasis in original).3 However, while Mother complied with the
pretrial exchange provision, Father did not. See N.T. (custody trial),
4/21/25, at 17-18; see also id. at 15.
2 The trial court docket bears a notation that the prothonotary sent copies of
the January 17, 2025, order “to counsel and/or parties of record pursuant to [Pa.R.C.P.] 236.” Docket, Entry 24 (capitalization modified); see also Pa.R.C.P. 236(a)(2) (“The prothonotary shall immediately give written notice of the entry of … any [] order … to each party’s attorney of record or, if unrepresented, to each party. The notice shall include a copy of the order[.]”); Pa.R.C.P. 236(b) (“The prothonotary shall note in the docket the giving of the notice[.”]). Where, as here, the prothonotary complies with Rule 236 in entering an order, there is a “presumption that [the party or their attorney] received the order.” Murphy v. Murphy, 988 A.2d 703, 710 (Pa. Super. 2010) (citation omitted).
3We observe that the January 17, 2025, order bears handwritten initials, which match the parties’ respective initials, next to each of the four (Footnote Continued Next Page)
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On February 5, 2025, Father filed a petition for contempt against
Mother, asserting she violated the terms of the interim custody order. Father
averred Mother had prevented him from exercising his periods of supervised
custody and from speaking with the Children via telephone. Petition for
Contempt, 2/5/25, ¶ 2. By order entered February 21, 2025, the trial court
stated it would rule on Father’s contempt petition at the time of trial. 4 Order,
2/21/25, ¶ 3.
The custody trial occurred on April 21, 2025. Father appeared pro se.
Mother appeared with her counsel, Melissa Rudas, Esquire (Attorney Rudas).
The parties were the only witnesses.
As a preliminary matter, the trial court asked Father if he wanted to
proceed with trial, or whether he would consider entering into a custody
agreement with Mother. See N.T., 4/21/25, at 9-14. Father replied, “At this
point, without representation, yes. Yes, I do” want to proceed to trial. Id. at
14. The trial court then pointed out to Father, “Well, you have chosen to
appear here today without [an attorney].” Id. at 14-15; see also id. at 19
(trial court cautioning Father that pro se litigants are held to the same
standard as represented litigants, stating, “[Y]ou’re assuming all those
paragraphs of the order, including the paragraph governing pretrial exchanges. See generally Order, 1/17/25.
4 The trial court made no contempt finding with respect to Mother either at
trial or thereafter.
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responsibilities yourself[,] so not being an attorney is not an excuse.”). Father
responded, “Yeah, I’m ready to go for it.” Id. at 15.
The trial court then directed Father to present his first witness. Id.
Father replied, “I don’t have any witnesses. I just have my statements here.
Can I present this to [the trial court]? I have a copy for [Attorney Rudas].”
Id. The trial court responded,
Well, [Attorney Rudas] would have to review [Father’s proffered documents (hereinafter, “Father’s documentation”) 5], and if [Attorney Rudas] objects to it -- I don’t know what [Father is] presenting or anything like that. Normally, … even though [Father is] representing [him]self, there are some borderlines here about being a witness and representing yourself. You still have to lay all the foundation [to introduce documentary evidence]. You don’t just get to hand things up to me.
Id. (footnote added; paragraph break omitted); see also id. at 16 (Father
providing copies of Father’s documentation to Attorney Rudas).
5 As discussed infra, Father’s documentation was not admitted into evidence
at trial. However, the certified record appears to contain some of Father’s documentation, attached to Father’s notice of appeal. See Notice of Appeal, 5/23/25, Attachment (unnumbered). In his appellate brief, Father explained that Father’s documentation was
comprised of date and timestamped written comments by [Mother] stating she wanted to stab [L.], bank statements showing payments [from Mother] to [CPS], bank statements [showing that Mother purchased] liquor 7 days before giving birth, date and timestamped statements [by Mother wherein she made] vacation plans while pregnant to have a drug and alcohol weekend with multiple men, [] paperwork [related to Mother’s] latest suicide attempt, [and] date and timestamped statements [wherein Mother stated she] was not doing well mentally[.]
Father’s Brief at 15.
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Attorney Rudas objected to Father’s belated disclosure, arguing as
follows:
With regard to what Father has handed me. … [I]t’s pretty much the things [Father] would testify to. …. There are also copies of text messages, bank records and some other things. We are required … under the local rules, ten days before trial[,] to set forth a witness list and an exhibit list. 6
I did send [Mother’s witness and exhibit list to Father prior to trial]. [Attorney Rudas] never received anything [from Father], so I would object to any of [Father’s documentation] coming into evidence. And I have had no time to prepare for them and to know what [Father is] going to present. And that’s exactly the reason [why] we have the local rule.
Id. at 17-18 (footnote added). The trial court noted Mother’s “standing
objection to any documents that [Father] may want to present.” Id. at 18.
Father acknowledged that pursuant to the interim custody order, he was
entitled to periods of supervised physical custody. Id. at 8. However, Father
admitted that he exercised no periods of custody, citing financial
considerations associated with the professional visitation supervisors (i.e., the
Children’s Home of Easton, a non-profit organization that offers supervised
visitation services). Id.; see also id. at 77 (Attorney Rudas asserting that
“[Father] is refusing to see [the Children] over a $125 intake fee” required by
6 Despite Attorney Rudas’s representation, Northampton County has no local
rule governing pretrial disclosures in child custody actions. However, this matter is governed by Pennsylvania Rule of Civil Procedure 1915.4-4(b), which we discuss infra. Pa.R.C.P. 1915.4-4(b); J.S. v. R.S.S., 231 A.3d 942, 954 (Pa. Super. 2020) (“Pa.R.C.P. 1915.4-4(b) provides that each party must file a pre-trial statement no later than five days prior to a pre-trial conference in a custody proceeding.” (footnote omitted)).
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the Children’s Home of Easton to commence services). The trial court pointed
out that “the [C]hildren have not been with [Father] … for over a year.” Id.
at 7.
Father testified that he desired to return to the custody schedule
established under the prior custody order:
I’ve had unsupervised visits with [the Children]. I have watched them for weeks on end all by myself at my house. I have no problems against going back to [exercising partial physical custody] every other weekend, [plus] five weeks a year, … as it was in the [prior custody order, which] … I fought two and a half years to get.
Id. at 23.
Father testified that the following factors supported his request for
increased physical custody time:
I have a home. I have vehicles. I have a stable career and a job. I get to work from home. I can provide for [the Children] nonstop, which I have been doing also.
***
… I have a stable community around me. I have a stable church that I go to … multiple times a week. And I have a fellowship with them. I have plenty of community and friends and family around -- well, not so much family, but friends in the community … to support me and that will advocate for me …. I have my neighbor’s letter with me saying … that I’m a good father and would be a very good father.
Id. at 22.
On cross-examination, Attorney Rudas extensively questioned Father
with respect to numerous text message images/memes (the memes) that
Father sent to L., many of which contained age-inappropriate adult content.
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See N.T., 4/21/25, at 26-35. The trial court admitted the memes into
evidence, without objection. Id. at 34; Plaintiff’s Ex. 2. Father conceded, “I
think it was a mistake” sending L. the memes. N.T., 4/21/25, at 36. Attorney
Rudas then asked Father whether he suffers from any psychological issues or
is being treated by a mental health professional. Id. Father responded in the
negative. Id.
Attorney Rudas additionally questioned Father, “So what is keeping you
specifically from seeing [the C]hildren at the Children’s Home of Easton?” Id.
at 40. Father responded as follows:
A. [Mother] refusing to pay her … registration fee.
Q. [Attorney Rudas:] So it’s $125 that’s keeping you from seeing [the C]hildren, correct?
A. Correct.
Q. Okay. And you are aware that you are able to pay that $125, correct?
A. I am, yes.
Id.
Following Mother’s cross-examination of Father, the trial court, in light
of Father’s pro se status, guided him regarding the procedure for redirect
examination. Id. at 41-42; see also id. (trial court stating, “[F]rankly, if
there’s just anything else you want [the trial court] to know -- this is your last
opportunity to present evidence as a witness here.”). Father then again
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offered Father’s documentation. Id. at 42. The trial court responded as
[B]ecause of [Mother’s] standing objection, [the trial court] will allow [Father] to mark things, present it as an exhibit, but it may not be entered into evidence at this point. Just as a point to [Father], I can be sympathetic to that, so I will allow him to present [Father’s documentation] for [Attorney Rudas] to look at it, but not be entered into evidence.
Id. (emphasis added).
Father then produced a document, seemingly related to his own medical
records, which he described as follows: “This was me going to get
psychological treatment for my divorce and everything going on. And them
stating that I do not need it.” Id. at 43. Attorney Rudas objected stating, “in
addition to my standing objection, this purports to be notes by a doctor of
psychology, so therefore, it would be hearsay.” Id.; see also Pa.R.E. 802
(rule against hearsay). The trial court then explained to Father the law
surrounding hearsay, N.T., 4/21/25, at 43, and stated it was “willing to accept
just [Father’s] testimony at this time of you saying you went to a doctor and
it’s your understanding that they were saying you didn’t need further
treatment from that.” Id. at 43-44.
On redirect, Father produced (1) a page purportedly taken from L.’s
diary, id. at 44-45; (2) one of L.’s drawings that, Father alleged, displayed a
swastika and “SOS,” id. at 45-46; and (3) photographs depicting Father and
the Children together. Id. at 47.
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Father also offered an anecdote regarding “[t]he last night that [the
Children] spent at my house[.]” Id. at 47-48. Mother objected, asserting
“[t]his is way beyond the scope of [Mother’s] cross.” Id. at 48; see also
Commonwealth v. Carpenter, 617 A.2d 1263, 1266 (Pa. 1992) (“[R]e-
direct examination is limited to answering only such matters as were drawn
out in the immediately preceding examination” of the adversary (citation
omitted)). The trial court overruled Mother’s objection. N.T., 4/21/25, at 48.
Father explained that while “at my house, [L.] couldn’t fall asleep. He just
kept calling for me to come in there and stay in the room with him, which I
did.” Id. Father testified that he responded to L. as follows:
I said, Do you remember when … you started reading books to me every night? …. And he said, Yes. And I said, You know, do you miss that? And all he started doing was sobbing uncontrollably until he fell asleep. That’s the last night that I saw him.
The following exchange then occurred between the trial court and
Father:
THE COURT: Okay. Anything else, sir?
[Father]: Since I’m unable to present my packet of information, which I am being denied to do yet again.
THE COURT: So, sir, you didn’t follow the local rules here.
[Father]: … I’m unaware of what they are or the proper procedure, and I apologize for that.
THE COURT: And I appreciate that. You are presenting your case and you’re doing a fine job, sir. I’ve looked at what you have handed up to me and all that. ….
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Id. at 49-50 (emphasis added);7 see also id. at 51 (trial court stating,
“[Father], I’m not going to give you legal advice here. I’m not going to present
your case for you. …. I’ve given you a lot of leeway at this point.”
(emphasis added)).
Nevertheless, the trial court permitted Father to make one final
statement, wherein Father asserted, “I have tried to call [the Children]
multiple times. And unless I call them on Monday night at 7:00 [p.m.] or
Friday night at 7:00 [p.m.] -- my call is blocked and I can’t answer.” Id. at
53; see also id. at 51 (Father alleging that Mother had paid bribes to “CPS in
the past. I don’t know why or what for.”). 8
Mother testified that she was employed by an insurance company, and
had resided in Northampton County with the Children since 2023. Id. at 58-
59. Mother represented she had no intention to move from Northampton
County in the near future. Id. at 59. Mother testified that her older child, L.,
was enrolled in school and was doing “[v]ery well.” Id.; see also id. (Mother
explaining that S. “is starting kindergarten in the fall.”). Mother stated that
her godmother resides nearby in Bucks County. Id.
7Father did not request a continuance to allow for him to provide Father’s documentation.
8 Mother declined to recross-examine Father. N.T., 4/21/25, at 54.
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Mother testified that Father last saw the Children on April 7, 2024. Id.
at 56. Mother emphasized that Father declined to exercise his periods of
supervised physical custody. Id. at 57. Mother stated that Father sometimes
engages in telephone calls with the Children, but only “50 to 60 percent of the
time.” Id. Mother further denied Father’s allegation that she had paid bribes
to CPS. Id. at 58.
When asked whether the Children have any behavioral problems,
Mother testified that “[s]ince the divorce, [L.] has struggled, but he has had
a therapist, as well as a psychiatrist, to ensure that we are getting him any
help that is needed.” Id. at 60 (punctuation modified). Mother denied
suffering from any mental health disorders herself. Id. Mother also denied
having any problems with drug or alcohol abuse. Id.
Mother asserted that Father struggles with drug and alcohol abuse,
which, she believed, may influence Father’s bizarre behavior. Id. at 60-61.
When asked why she has concerns about Father having unsupervised contact
with the Children, Mother testified that, in April 2024,
somebody that [Father] was dating reached out [to Mother via phone.] I didn’t have concerns until the person that [Father] was dating reached out to me and said, I am concerned for your children’s wellbeing[. Father] is delusional and extremely depressed[. H]as he always struggled with mental health issues?
Id. at 61. Mother confirmed that she has recently “noticed a decline in
[Father’s] mental health[.]” Id. In support, Mother pointed to the memes
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Father sent to L., as well as “[Father’s] mannerisms and his anger and
animosity.” Id. at 63.
Finally, Mother proffered a social media video post Father created,
depicting him and a large quantity of documents, which was admitted into
evidence and played in open court. Id. at 67; Plaintiff’s Ex. 4. In the video,
Father states, in relevant part, as follows:
This is the mountain of paperwork that I’ve had to go through in order to see my children. After [Mother] failed to kill herself yet again, and after she’s had another stroke …[,] this is what I’ve had to go through in order to see my children after my fat, toothless ex-wife … tried to kill herself and failed again. This is just to see my children. …. Because everything I do she knows about and uses against me in court because she tells my children that I don’t want to see them and then files something new against me to prevent me from seeing them.
N.T., 4/21/25, at 67-68.
During Father’s cross-examination of Mother, he inquired about Mother’s
purported suicide attempt in 2021, i.e., prior to the parties’ divorce. Id. at
72. Mother objected on the basis of relevance and staleness, pointing out her
suicide attempt predated the prior custody order. Id. at 73. The trial court
sustained the objection, but stated that it would permit Father to “rephrase
[his question] or rework here[.]” Id. Father then asked for permission to
introduce a police report, purportedly related to Mother’s suicide attempt, as
an exhibit. Id. Mother again objected on the basis of hearsay. Id. at 73-74;
see also id. at 74 (Mother pointing out Father gave her no pretrial notice of
the police report). The trial court sustained the objection. Id. at 74.
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Following the close of evidence at trial, the trial court considered the
parties’ respective closing statements. Id. at 75-78. Mother argued that she
“should have sole legal and physical custody.” Id. at 78. Mother also
requested a court order for professional “reunification [counseling] between
Father and the [C]hildren at his expense,” as well as a separate “psychological
evaluation” of Father, at his expense. Id. The trial court then took the matter
under advisement. Id.
On April 24, 2025, the trial court entered the final custody order
underlying the instant appeal.9 The order awarded Mother sole legal custody
and primary physical custody, subject to Father’s periods of supervised partial
physical custody.10 Order, 4/24/25, ¶¶ 1-3; see also id. ¶ 6 (permitting
9 Concomitantly with the April 24, 2025, order, the trial court filed a separate
order in which it analyzed the Act’s statutory best-interest factors, set forth in 23 Pa.C.S.A. § 5328(a), which a trial court must consider in making any custody ruling. See generally Order, 4/24/25 (analyzing the Section 5328(a) factors).
10 Regarding Father’s custodial periods, the custody order provided as follows:
Father shall have periods of partial physical custody at the Children’s Home of Easton. All costs shall be borne by Father. Father’s periods of partial physical custody shall not begin until recommended in writing by [a professional] reunification counselor[.]
Order, 4/24/25, ¶ 3; see also id. ¶ 4 (“The parties shall cooperate with each other in good faith in an effort to have the costs of [reunification] counseling covered by insurance. Any cost of the counseling not covered by insurance shall be borne by Father.”); Rogowski v. Kirven, 291 A.3d 50, 60 (Pa. Super. 2023) (“[P]ursuant [to] Section 5333 of the … Act, a trial court ‘may, as part (Footnote Continued Next Page)
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Father telephone contact with the Children “every Tuesday and Thursday
between the hours of 7:00 p.m. and 8:00 p.m.”).
Father timely filed a pro se notice of appeal.11 The trial court has also
complied with Pa.R.A.P. 1925.
On August 28, 2025, Father filed in this Court a pro se Application for
Correction of the Original Record (Application), pursuant to Pa.R.A.P. 1926
of a custody order, require the parties to attend counseling sessions.’” (citation and quotation marks omitted)).
11 We acknowledge Father did not file a contemporaneous Pa.R.A.P. 1925(a)(2)(i) concise statement with his pro se notice of appeal. Id. (mandating that in children’s fast track appeals, the “concise statement of errors complained of on appeal shall be filed and served with the notice of appeal.” (emphasis added)). Nevertheless, this Court accepts the issues that Father set forth in his notice of appeal as his concise statement. See Jacobs v. Jacobs, 884 A.2d 301, 305 (Pa. Super. 2005) (“[I]f the failure to comply with the rules of appellate procedure does not impede review of the issues or prejudice the parties, we will address the merits of the appeal.” (citation omitted)); Pa.R.A.P. 105(a) (stating that the Rules of Appellate Procedure shall be liberally construed, and an appellate Court may disregard the Rules in the interest of expediting a decision).
Furthermore, we acknowledge that the issues Father identified in his notice of appeal vary slightly from those set forth in his appellate brief’s statement of questions involved. Compare Notice of Appeal, 5/23/25, at 1 (unpaginated), with Father’s Brief at 5-6. This Court has held that, where a pro se appellant raises an issue in an appellate brief that is not preserved in their Pa.R.A.P. 1925(a)(2)(i) statement, we may find the issue waived. In the Interest of: G.D. v. D.D., 61 A.3d 1031, 1036 n.3 (Pa. Super. 2013); see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement … are waived.”). Nevertheless, we overlook this transgression and deem Father’s issues preserved. See Durning v. Balent/Kurdilla, 19 A.3d 1125, 1127 n.2 (Pa. Super. 2011) (addressing merits of appellant’s issues, which “were raised, or fairly suggested by, issues raised in [appellant’s] concise statement”).
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(governing correction or modification of the record). Father sought “to correct
the appellate record by adding omitted video evidence critical to the appeal[,]”
which was not presented at trial. Application, 8/28/25, at 1; see also id.
(“The videos depict [L.] speaking in terms that are abnormal and show signs
of mental abuse.”).12 We denied the Application by order entered September
18, 2025.
On appeal, Father presents four issues for our review:
1. Did the [trial] court violate [Father’s] due process rights under Pa. Const. Art. 1, 9 by excluding all [of Father’s documentation] in a custody/visitation proceeding due to [Father’s] unawareness, as a pro se litigant, of the requirement to notify opposing counsel, without providing guidance or an opportunity to comply, which the trial court permitted?
2. Did the trial court abuse its discretion by excluding all of [Father’s documentation] based solely on the failure to notify opposing counsel under Pa.[]R.C.P. 1915.6, 13 without assessing the evidence’s relevance to the [Children’s] best interests under 23 Pa.C.S.[A. §] 5328, which the trial court permitted?
3. Did the trial court err by unfairly applying procedural rules, such as Pa.[]R.C.P. 1915.6 and Northampton County Local Rule C1915.3-1,14 against [Father], a pro se litigant, by excluding evidence without informing or allowing correction, which the trial court permitted? ____________________________________________
12 Father included an electronic copy of the video evidence with his Application.
13 Rule 1915.6 governs the joinder of parties in child custody and related actions. See generally Pa.R.C.P. 1915.6. However, Rule 1915.6 in no way pertains to Father’s claims, none of which implicate joinder.
14 Northampton County has no “Local Rule C1915.3-1.” But see Northampton County Local Rule N1915.1(3) (governing the procedure for pleadings that require a child custody conference before a custody conference officer).
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4. Did the [trial] court’s exclusion of [Father’s documentation] prevent a full assessment of the [Children’s] best interests under 23 Pa.C.S.[A. §] 5328, rendering the custody/visitation order legally deficient, which the trial court permitted?
Father’s Brief at 5-6 (footnotes added). Because Father’s issues are
interrelated, we address them together.
Father claims the trial court improperly excluded Father’s
documentation from evidence at trial, as a sanction for his “technical failure”
to comply with the January 17, 2025, order, which precluded the court from
having a complete record to weigh the best interests of the Children. See id.
at 12-18. In his first issue, Father asserts the trial court deprived him of due
process, where it “excluded all of [Father’s documentation] (e.g.[,] documents
showing parental fitness) because [Father], a pro se litigant, was unaware of
the requirement to notify opposing counsel.” Id. at 13 (citation omitted).
In his second issue, Father complains the trial court gave him “no
guidance or opportunity to correct the procedural error, despite [Father’s]
good-faith attempt to present evidence relevant to the [C]hildren’s best
interests under 23 Pa.C.S.[A. §] 5328.”15 Father’s Brief at 14. Father avers
the trial court improperly excluded Father’s documentation
15 Father does not allege that the trial court erred in its consideration of the
statutory best-interest factors of 23 Pa.C.S.A. § 5328(a), which a trial court must consider “[i]n ordering any form of custody[.]” Id. “As this potential claim does not implicate jurisdiction, we do not address it sua sponte.” Frierson v. Love, 289 A.3d 53, 538 MDA 2022 (Pa. Super. 2022) (Footnote Continued Next Page)
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without assessing its relevance or offering a chance to remedy the lack of notice to opposing counsel. This blanket exclusion was unreasonable, as the evidence was material to statutory custody factors, such as parental duties, child safety, [and] parental fitness.
Id. at 15 (internal record citation omitted); see also id. (asserting the trial
court’s “failure to balance procedural compliance with the need for a complete
record constitutes an abuse of discretion.”).
In his third issue, Father claims the trial court “unfairly applied
procedural rules against a pro se litigant.” Id. at 16 (some capitalization
modified). Father contends the trial court
knew [that Father] was pro se but failed to inform [Father] of the requirements to notify opposing counsel of evidence …. This strict application of rules without guidance or a chance to comply (e.g., via continuance) violated fairness principles.
Id.; see also id. (asserting the exclusion of Father’s documentation
“effectively barr[ed Father] from presenting a case.”).
Finally, Father argues that, by excluding Father’s documentation, the
trial court was prevented from conducting an adequate evaluation of the
Children’s best interests under 23 Pa.C.S.A. § 5328(a). See Father’s Brief at
(unpublished memorandum at 8 n.4) (in a child custody dispute, declining to address on appeal any “potential claim” by the pro se mother regarding the trial court’s weighing of the Section 5328(a) factors, where mother raised no such claim, stating that “[i]t is improper for this Court to address [a] non- jurisdictional issue sua sponte as a grounds for reversal.”) (quoting Turner Constr. v. Plumbers Local 690, 130 A.3d 47, 63 (Pa. Super. 2015)); see also Pa.R.A.P. 126(b) (providing this Court’s unpublished memoranda filed after May 1, 2019, may be cited for their persuasive value).
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17-18. According to Father, the “incomplete record likely skewed the [trial]
court’s ruling, as it lacked [Father’s] perspective” on matters relevant to the
Children’s best interests. Id. at 17. Accordingly, Father asserts, this “Court
should reverse and remand for a hearing that includes [Father’s
documentation] to ensure a proper best-interests analysis.” Id. at 18.
Mother counters the trial court properly excluded Father’s
documentation at trial, where Father failed to comply with an unambiguous
order mandating pre-trial exchanges, and his status as a pro se litigant entitles
him to no special benefit. See Mother’s Brief at 2-4. Mother points out that,
under Pennsylvania law, pro se litigants
must adhere to all laws, rules, and regulations that apply to lawyers, including the Rules of Civil Procedure. Here, Father failed to comply with the pretrial deadlines set by the trial court, and did not identify and exchange his proposed exhibits with opposing counsel. Despite this, the trial court permitted Father to present his case during trial and to actively participate, albeit within the bounds of the rules of evidence.
Id. at 3-4 (some capitalization modified).
Although Father argues, throughout his entire appellate brief, that he should have been provided guidance and ultimately [granted] great leeway due to his status as a pro se litigant, the law of the Commonwealth of Pennsylvania simply does not support his position.
Id. at 2 (some capitalization modified). Mother concludes, “the fact that
Father is unhappy with the decision of the trial court, after a full trial, is not a
legal basis upon which the well-reasoned and well-supported order of the trial
court can be reversed.” Id. at 4 (some capitalization modified).
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To begin, we recognize that “[o]ur standard of review over a custody
order is for a gross abuse of discretion.” Rogowski, 291 A.3d at 60 (citation
omitted); see also Wilson v. Smyers, 284 A.3d 509, 520 (Pa. Super. 2022)
(describing abuse of discretion as a “deferential standard of review”). “An
abuse of discretion is not merely an error of judgment[.]” Mazzarese v.
Mazzarese, 165 A.3d at 965 (Pa. Super. 2024) (citation omitted). Rather,
[a]ppellate courts will find a trial court abuses its discretion if, in reaching a conclusion, it overrides or misapplies the law, or the record shows that the trial court’s judgment was either manifestly unreasonable or the product of partiality, prejudice, bias or ill will.
R.L. v. M.A., 209 A.3d 391, 395 (Pa. Super. 2019) (citation and brackets
omitted).
“A question regarding whether a due process violation occurred is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018)
(citation omitted). “[D]ue process is required during [child] custody
proceedings.” E.B. v. D.B., 209 A.3d 451, 463 (Pa. Super. 2019); see also
J.C.D. v. A.L.R., 303 A.3d 425, 433 (Pa. 2023) (“The right to make decisions
concerning the care, custody, and control of one’s children is one of the oldest
fundamental rights protected by the Due Process Clause.”) (quoting Hiller v.
Fausey, 904 A.2d 875, 885 (Pa. 2006)). This Court has stated that “[f]ormal
notice and an opportunity to be heard are fundamental components of due
process when a person may be deprived in a legal proceeding of a liberty
interest, such as … a parent’s custody of [his or] her child.” Everett v.
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Parker, 889 A.2d 578, 580 (Pa. Super. 2005) (citation omitted; emphasis
added); see also id. (“Notice, in our adversarial process, ensures that each
party is provided adequate opportunity to prepare and thereafter properly
advocate its position, ultimately exposing all relevant factors from which the
finder of fact may make an informed judgment.” (citation omitted)).
As stated supra, Pennsylvania Rule of Civil Procedure 1915.4-4 governs
pretrial disclosures and related matters in child custody actions, and provides,
in relevant part, as follows:
(b) Pre-Trial Statement.
(1) Not later than five days prior to the pre-trial conference, each party shall file a pre-trial statement with the prothonotary and serve a copy upon the court and the other party or the party’s counsel.
(2) The pre-trial statement shall include, together with any additional information required by special order of the court, the following matters:
(i) the name and address of each expert whom the party intends to call as a witness at trial;
(ii) the name and address of each person the party intends to call as a witness at trial and the relationship of that witness to the party. Inclusion of a witness on the pre-trial statement constitutes an affirmation that the party’s counsel or the self-represented party has communicated with the witness about the substance of the witness’s testimony prior to the filing of the pre-trial statement; and
(iii) a proposed order setting forth the custody schedule requested by the party.
(c) Exhibits. In addition to subdivision (b)(2), the party shall include any proposed exhibits to be introduced at trial, including the expert’s report, as part of the pre-trial statement
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served upon the other party or other party’s counsel, but the proposed exhibits shall not be included with the pre-trial statement served upon the court.
(d) Sanctions. If a party fails to file a pre-trial statement or otherwise comply with the requirements of subdivisions (b) and (c), the court may sanction the party as provided in Pa.R.C[].P. 4019(c)(2) and (c)(4).
Pa.R.C.P. 1915.4-4(b), (c) and (d) (emphasis added).
The sanctions specified under Rule 4019(c) include, inter alia, the
following:
(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition[.]
Pa.R.C.P. 4019(c)(2) (emphasis added); see also Nat’l Brokers of Am.,
Inc. v. Jordan, 307 A.3d 1206, 1219 (Pa. Super. 2023) (“[Rule] 4019
generally authorizes trial courts to impose sanctions for a party’s failure to
comply with a discovery order.”).
The decision whether to sanction a party for the failure to comply with a discovery order, and the degree of that sanction, are within the discretion of the trial court. This Court will disturb such a sanction only where the trial court has abused its discretion.
Jacobs, 884 A.2d at 305 (internal citations omitted). Finally, “[q]uestions
concerning the admission or exclusion of evidence are within the sound
discretion of the trial court and may be reversed on appeal only when a clear
abuse of discretion was present.” E.K. v. J.R.A., 237 A.3d 509, 522-23 (Pa.
Super. 2020) (citation omitted).
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Here, in its Rule 1925(a) opinion, the trial court concluded it properly
exercised its discretion in sanctioning Father under Rule 4019(c)(2), reasoning
as follows:
By order dated January 17, 2025, the parties were to “exchange expert reports and lists of exhibits and witnesses on or before ten (10) days before trial.”16 [] Order of Court, Jan. 17, 2025[, ¶ 3]. [Father] failed to do so. Pa.R.C.P. 4019(c)(2) allows a court to prohibit a party from introducing evidence if they fail to comply with discovery orders. See J.S. …, 231 A.3d [at] 954-55 … ([determining that a] trial court’s decision to prevent the father’s counsel from cross-examining witnesses was a permissible sanction under Rule 4019(c)(2) due to the father’s failure to file a pre-trial statement[,] in compliance with the court’s scheduling order). This was a proper sanction for [Father’s] failure to comply with the [trial] court’s January 17, 2025 order.
While the [trial] court barred [Father’s documentation] from being entered into evidence, the court did allow [Father] to mark and present his exhibits. [See N.T., 4/21/25,] at 42, 44-45[; see also id. at 50 (trial court stating to Father, “I’ve looked at what you have handed up to me”)]. [Father] is incorrect when he states that the court denied him an opportunity to “present” or “introduce” evidence.
Trial Court Rule 1925(a) Opinion, 6/23/25, ¶¶ 1-2 (footnote added; paragraph
numbering omitted; some capitalization modified).
The trial court’s foregoing reasoning is supported by the record and the
law, and we agree with its determination. Pursuant to J.S., the trial court had
the authority to sanction Father under Rule 4019(c)(2), and exclude Father’s
documentation from evidence; his pro se status entitled him to no special
16 We reiterate that Father placed his initials on the order next to the provision
requiring pretrial exchanges. See Order, 1/17/25, ¶ 3.
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benefit. See J.S., 231 A.3d at 954-55; see also Smithson v. Columbia Gas
of PA/NiSource, 264 A.3d 755, 760 (Pa. Super. 2021) (“A pro se litigant
must comply with the procedural rules set forth in the Pennsylvania Rules of
[] Court.” (citation omitted)).
As discussed supra, at trial, the trial court repeatedly acknowledged its
mindfulness of Father’s pro se status, and guided Father when appropriate.
See N.T., 4/21/25, at 14-15, 19, 41; see also id. at 42 (trial court stating,
“I can be sympathetic to” Father’s pro se status). At the beginning of trial,
the trial court cautioned Father that pro se litigants are held to the
same standard as represented litigants, stating, “[Y]ou’re assuming
all those responsibilities yourself[,] so not being an attorney is not an
excuse.” Id. at 19 (emphasis added); see also S.S. v. T.J., 212 A.3d 1026,
1032 (Pa. Super. 2019) (“[A]ny person choosing to represent himself in a
legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.” (citation omitted)). Father
acknowledged the trial court’s caution and stated he still wished to proceed
pro se at trial. Id. at 15. Father did not request a continuance.
Although Father’s documentation was not officially admitted into
evidence at trial, the trial court (1) permitted Father to present Father’s
documentation to the court and opposing counsel, id. at 42, 44-45; (2)
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allowed Father to testify regarding some of Father’s documentation, 17 id. at
43-48; and (3) expressly noted that it had afforded Father “a lot of leeway”
in presenting his case. Id. at 51. Thus, Father was afforded “an opportunity
to be heard.” Everett, 889 A.2d at 580.
Based on the foregoing, none of Father’s issues entitle him to relief. As
we discern no abuse of discretion or error of law by the trial court in entering
the custody order, following a full and fair trial, we affirm.
Order affirmed.
Date: 12/16/2025
17 Indeed, as explained supra, the trial court permitted Father to offer testimony regarding some of his documents over Mother’s objection. See N.T., 4/21/25, at 48.
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