J-S25001-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
OLUSEUN WERT : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOSHUA WERT : No. 174 EDA 2024
Appeal from the Order Entered January 2, 2024 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2023-FC-0388
BEFORE: DUBOW, J., McLAUGHLIN, J., and BECK, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 24, 2024
Appellant, Olusean Wert (“Mother”), appeals from the January 2, 2024
order entered in the Lehigh County Court of Common Pleas that awarded
Mother and Appellee, Joshua Wert (“Father”), shared legal and physical
custody of the parties’ children, seven-year-old L.W. and five-year-old L.W.
(collectively, “Children”). Upon review, we affirm.
A detailed recitation of the factual and procedural history is unnecessary
to our disposition. Briefly, on April 12, 2023, after approximately ten years of
marriage, Mother filed a complaint in divorce and custody, requesting shared
legal and primary physical custody of Children. On June 1, 2023, after a
custody conference, the trial court entered an interim custody order awarding
the parties shared legal and physical custody of Children pending a full custody
trial. On August 10, 2023, December 13, 2023, and December 14, 2023, the
court held a custody trial. Mother presented testimony from Children’s J-S25001-24
babysitter and herself. Father presented testimony from his coworker/friend,
his mother, his mother’s paramour, and himself. On January 2, 2024, after
considering the 23 Pa.C.S. § 5328 custody factors, the trial court entered an
order awarding shared legal and physical custody to the parties. Specifically,
the court ordered the parties to follow a “2-2-5-5” rotating custody schedule
where Mother and Father received an equal amount of weekday and weekend
time with Children.
Mother timely appealed.1 Both Mother and the trial court complied with
Pa.R.A.P. 1925.
Notably, in her brief to this Court, Mother fails to include a statement of
the questions involved as required by Pa.R.A.P. 2116. However, in her Rule
1925(b) statement as well as her argument section, Mother enumerates the
following issues for our review:
1. The trial court erred when it denied Mother’s petition for primary custody.
2. The trial court erred when it did not allow videos from [Mother]’s home to be entered into evidence.
____________________________________________
1 On January 12, 2024, Mother filed a notice of appeal purporting to challenge
two separate orders in two separate cases. Specifically, Mother challenged both a December 13, 2023 order denying a protection from abuse petition as well as a January 2, 2024 custody order. On January 29, 2024, this Court entered a rule to show cause directing Mother to respond as to the order being appealed. On February 7, 2024, Mother filed a response to the rule to show cause, and on February 20, 2024, Mother filed an amended notice of appeal solely challenging the January 2, 2024 custody order.
-2- J-S25001-24
3. The trial court erred when it did not allow videos from [Mother]’s marital home to be admitted into day two of trial, but allowed them in day one of trial.
Mother’s Br. at 7, 11, 12 (unpaginated).
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). This Court 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 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
-3- J-S25001-24
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).
Furthermore, our review of a trial court’s evidentiary rulings is well-
established. “The admissibility of evidence is a matter solely within the
discretion of the trial court. This Court will reverse an evidentiary ruling only
where a clear abuse of discretion occurs.” Commonwealth v. Johnson, 638
A.2d 940, 942 (1994) (citation omitted). “An abuse of discretion will not be
found merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
-4- J-S25001-24
erroneous.” Commonwealth v. Lehman, 275 A.3d 513, 518–19 (Pa.
Super.) (citation omitted), appeal denied, 286 A.3d 213 (Pa. 2022).
B.
As an initial matter, Mother’s argument section is substantially
underdeveloped. To support her claims, Mother merely provides boilerplate
law regarding child custody proceedings and the admission of video recordings
into evidence. Under each argument heading, Mother boldly states: “[t]he
undersigned is unable to complete the factual basis for this part of the
argument, as she is still missing a transcript[.]” 2 Mother’s Br. at 10, 12, 13-
14 (unpaginated). As such, Mother fails to apply the facts of this case to the
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J-S25001-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
OLUSEUN WERT : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOSHUA WERT : No. 174 EDA 2024
Appeal from the Order Entered January 2, 2024 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2023-FC-0388
BEFORE: DUBOW, J., McLAUGHLIN, J., and BECK, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 24, 2024
Appellant, Olusean Wert (“Mother”), appeals from the January 2, 2024
order entered in the Lehigh County Court of Common Pleas that awarded
Mother and Appellee, Joshua Wert (“Father”), shared legal and physical
custody of the parties’ children, seven-year-old L.W. and five-year-old L.W.
(collectively, “Children”). Upon review, we affirm.
A detailed recitation of the factual and procedural history is unnecessary
to our disposition. Briefly, on April 12, 2023, after approximately ten years of
marriage, Mother filed a complaint in divorce and custody, requesting shared
legal and primary physical custody of Children. On June 1, 2023, after a
custody conference, the trial court entered an interim custody order awarding
the parties shared legal and physical custody of Children pending a full custody
trial. On August 10, 2023, December 13, 2023, and December 14, 2023, the
court held a custody trial. Mother presented testimony from Children’s J-S25001-24
babysitter and herself. Father presented testimony from his coworker/friend,
his mother, his mother’s paramour, and himself. On January 2, 2024, after
considering the 23 Pa.C.S. § 5328 custody factors, the trial court entered an
order awarding shared legal and physical custody to the parties. Specifically,
the court ordered the parties to follow a “2-2-5-5” rotating custody schedule
where Mother and Father received an equal amount of weekday and weekend
time with Children.
Mother timely appealed.1 Both Mother and the trial court complied with
Pa.R.A.P. 1925.
Notably, in her brief to this Court, Mother fails to include a statement of
the questions involved as required by Pa.R.A.P. 2116. However, in her Rule
1925(b) statement as well as her argument section, Mother enumerates the
following issues for our review:
1. The trial court erred when it denied Mother’s petition for primary custody.
2. The trial court erred when it did not allow videos from [Mother]’s home to be entered into evidence.
____________________________________________
1 On January 12, 2024, Mother filed a notice of appeal purporting to challenge
two separate orders in two separate cases. Specifically, Mother challenged both a December 13, 2023 order denying a protection from abuse petition as well as a January 2, 2024 custody order. On January 29, 2024, this Court entered a rule to show cause directing Mother to respond as to the order being appealed. On February 7, 2024, Mother filed a response to the rule to show cause, and on February 20, 2024, Mother filed an amended notice of appeal solely challenging the January 2, 2024 custody order.
-2- J-S25001-24
3. The trial court erred when it did not allow videos from [Mother]’s marital home to be admitted into day two of trial, but allowed them in day one of trial.
Mother’s Br. at 7, 11, 12 (unpaginated).
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). This Court 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 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
-3- J-S25001-24
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).
Furthermore, our review of a trial court’s evidentiary rulings is well-
established. “The admissibility of evidence is a matter solely within the
discretion of the trial court. This Court will reverse an evidentiary ruling only
where a clear abuse of discretion occurs.” Commonwealth v. Johnson, 638
A.2d 940, 942 (1994) (citation omitted). “An abuse of discretion will not be
found merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
-4- J-S25001-24
erroneous.” Commonwealth v. Lehman, 275 A.3d 513, 518–19 (Pa.
Super.) (citation omitted), appeal denied, 286 A.3d 213 (Pa. 2022).
B.
As an initial matter, Mother’s argument section is substantially
underdeveloped. To support her claims, Mother merely provides boilerplate
law regarding child custody proceedings and the admission of video recordings
into evidence. Under each argument heading, Mother boldly states: “[t]he
undersigned is unable to complete the factual basis for this part of the
argument, as she is still missing a transcript[.]” 2 Mother’s Br. at 10, 12, 13-
14 (unpaginated). As such, Mother fails to apply the facts of this case to the
law that she provides to assert any actual trial court error.
It is axiomatic that the argument portion of an appellate brief must be
developed with citation to the record and relevant authority. Pa.R.A.P
2119(a)-(c). “The Rules of Appellate Procedure [] state unequivocally that
each question an appellant raises is to be supported by discussion and analysis
of pertinent authority.” Commonwealth v. Martz, 232 A.3d 801, 811 (Pa.
Super. 2020) (citation omitted); see Pa.R.A.P. 2111 (listing briefing
requirements for appellate briefs) and Pa.R.A.P. 2119 (listing argument
2 Mother faults a missing transcript for her inability to provide any substantive
legal analysis. Our review of the docket reveals that Mother initially failed to order the December 14, 2023 transcript in violation of Pa.R.A.P. 1911 and subsequently motioned this Court for assistance with the missing transcript. On April 2, 2024, upon order from this Court, the lower court supplemented the certified record with the December 14, 2023 notes of testimony. Thereafter, Mother failed to motion this Court to supplement her brief.
-5- J-S25001-24
requirements for appellate briefs). “When issues are not properly raised and
developed in briefs, when the briefs are wholly inadequate to present specific
issues for review[,] a Court will not consider the merits thereof.” Branch
Banking and Trust v. Gesiorski, 904 A.2d 939, 942-43 (Pa. Super. 2006)
(citation omitted). It is not the role of this Court to develop an appellant's
argument where the brief provides mere cursory legal discussion.
Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009). This Court will
not act as counsel. In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012).
Because Mother fails to apply the law to the facts of this case in a
meaningful and coherent manner with citation to the record as required by
our Rules of Appellate Procedure and case law, we find her issues to be waived.
C.
Even if this court did not find Mother’s issues to be waived, we discern
no trial court error. After careful review of the parties’ briefs, the applicable
law, and the trial court’s well-reasoned and thorough opinion, we conclude
that there is no merit to the issues that Mother has raised on appeal. The trial
court engaged in an analysis of each of the Section 5328 custody factors and
made specific findings regarding each factor, which the record supports. Tr.
Ct. Op., 4/11/24, at 1-9. The trial court also addressed Mother’s evidentiary
challenges and explained why each video marked at trial was included or
precluded from evidence, despite Mother not identifying the specific videos to
which she was referring. Id. at 12. Accordingly, even if we did not find waiver
we would affirm on the basis of the trial court’s April 11, 2024 opinion. Id. at
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1-12 (considering all of the Section 5328 custody factors and finding that it
was in Children’s best interest to award shared legal and physical custody to
parties and concluding that the trial court did not abuse its discretion when it
precluded video evidence).
All parties are instructed to attach a redacted copy of the April 11, 2024
trial court opinion to all future filings.
Order affirmed.
Date: 9/24/2024
-7- Circulated 09/13/2024 09:00 AM