D.S. v. H.H.N.P. ( 2022 )

J-A29001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
H.H.N.P. :
:
Appellant : No. 646 WDA 2021
Appeal from the Order Entered May 3, 2021
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD13-006087-008
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JANUARY 25, 2022
H.H.N.P. (Mother) appeals from the order entered on May 3, 2021, by
the Court of Common Pleas of Allegheny County that awarded D.S. (Father)
sole legal custody and primary physical custody of M.A.D. (Child), born in
January of 2013. Mother was awarded partial physical custody of Child in
accordance with a schedule delineated in the order. The order also held
Mother in contempt of four prior orders of court. After careful review, we
affirm the trial court’s custody order. However, we deny Father’s applications
to quash and to dismiss this appeal and also deny his request for counsel fees.
Before considering the merits of Mother’s appeal, which she filed on June
4, 2021, we reviewed this Court’s docket and note that Father filed both an
application to quash and an application to dismiss this appeal. Specifically,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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on June 10, 2021, Father filed an application to quash, and on June 21, 2021,
Mother responded. This Court’s order, dated July 8, 2021, denied the
application to quash without prejudice, thus, allowing Father to file a new
application to quash after the appeal was assigned to a merits panel. Then,
on August 31, 2021, Father filed the application to dismiss, and Mother filed
an answer on September 10, 2021. The application to dismiss was deferred
to the merits panel. Thereafter, Father renewed his application to quash
Mother’s appeal, which was granted by this Court in an order dated November
17, 2021. Following Mother’s application to reconsider the order granting the
quashal and Father’s response, this Court vacated its November 17, 2021
order and deferred the quashal issue to the time of disposition by the merits
panel. As a result, the case was relisted for argument on December 14, 2021.
To begin, we deny Father’s applications to quash or to dismiss Mother’s
appeal. We disagree with Father that Mother’s appeal was untimely and,
therefore, deny his application to quash. Mother filed her appeal within thirty
days of the trial court’s issuance of the May 3, 2021 final order that amended
the April 21, 2021 order. We also deny Father’s motion to dismiss. Although
Mother’s Rule 1925(b) statement is lengthy and her brief fails to comply with
our Rules of Appellate Procedure, our review is not impeded. See Jacobs v.
Jacobs, 884 A.2d 301, 305 (Pa. Super. 2005) (“This Court has held that the
rules of appellate procedure are ‘mandatory, not directing’ and it is within our
discretion to dismiss an appeal when the rules of appellate procedure are
violated. However, if the failure to comply with rules of appellate procedure
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does not impede review of the issues or prejudice the parties, we will address
the merits of the appeal.”) (citation and some quotation marks omitted).
Moreover, it is the consensus of this merits panel that emphasizing the trial
court’s reasoning underlying its determination may be more appropriate and
helpful to Mother in the months and years ahead. Additionally, we recognize
that in a prior appeal to this Court, Father’s motion to dismiss was granted.
See D.P.S. v. H.H.N.P., No. 1692 WDA 2016 (Pa. Super. filed Feb. 9, 2017)
(order granting motion to dismiss appeal but denying request for counsel
fees). We likewise deny Father’s request for counsel fees.
We now turn to the issues raised in Mother’s appeal and proceed to
review the merits, which have been appropriately addressed by the trial court.
The relevant scope and standard of review in custody matters are as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We 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. In addition, with 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.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
Furthermore, we note that:
The discretion that a trial court employs in custody
matters should be accorded the utmost respect, given
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the special nature of the proceeding and the lasting
impact the result will have on the lives of the parties
concerned. Indeed, the knowledge gained by a trial
court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006)
(quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super.
2004)).
A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012). Moreover, “[w]hen a trial
court orders a form of custody, the best interest of the child is paramount.”
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (citation omitted).
Mother raises the following issues for our review:
FIRST: Whether the four contempt adjudications were sufficiently
proven, and whether the individual or collective result of those
contempts could justify the [c]ourt’s intention to “craft an order
that makes it a little less opportune for instability and lack of
continuity to occur.”
SECOND: Whether the Burger King – Meadows Casino incident
where Mother’s children were left in the care of an older sibling
was sufficiently proven to be given custody-factor weight and
whether the result of that incident was sufficient to justify the
[c]ourt’s intention to “craft an order that makes it a little less
opportune for instability and lack of continuity to occur.”
THIRD: Whether alleged instability in Mother’s home
environment, whether alleged instability in Mother’s psychology,
whether Mother’s alleged parental alienation syndrome, whether
Mother’s alleged “economic dishonesty[,”] and whether Mother’s
alleged moral turpitude were sufficiently proven to be given
custody-factor weight and whether the result of that incident was
sufficient to justify the [c]ourt’s intent to “craft an order that
makes it a little less opportune for instability and lack of continuity
to occur.”
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FOURTH: Whether it was improper for the [c]ourt to delegate to
Father the ability to modify/punish for contempt, without a judicial
hearing.
Mother’s brief at 9-10 (footnotes omitted; capitalization in original).
In its opinion filed following the custody hearing, the trial court provided
a factual and procedural history of the case. See Trial Court Opinion (TCO),
7/7/2021, at 1-2. The opinion also referenced the court’s reading into the
record its analysis of the custody factors set forth in 23 Pa.C.S. § 5328. Id.
at 2. This reading took place at a hearing on April 21, 2021, which was held
remotely due to the pandemic. The court also noted that Mother was
“removed from the remote hearing due to her failure to follow my
admonishments and those of her lawyer to keep silent[.]” Id. at 2 n.3. The
opinion also discussed the facts it relied on and its reasons for awarding Father
sole legal custody and primary physical custody. Id. at 7-11.
Essentially, Mother’s arguments are requesting that this Court re-find
facts and re-weigh the evidence presented. However, our standard of review
does not permit us to function in this manner. Rather, our standard of review
requires that we “accept findings of the trial court that are supported by
competent evidence of record, as our role does not include making
independent factual determinations.” C.R.F., III v. S.E.F., 45 A.3d 441, 443
(Pa. Super. 2012). Moreover, we “may reject the conclusions of the trial court
only if they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.” E.D. v. M.P., 33 A.3d 73, 76 (Pa.
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Super. 2011). We do not conclude that that is the situation here. The trial
court’s findings are based on competent evidence contained in the record and
its conclusions are not unreasonable.
We have reviewed the certified record, the parties’ briefs, the applicable
law, and the thorough, well-reasoned opinion authored by the Honorable
Cathleen Bubash of the Court of Common Pleas of Allegheny County, dated
July 7, 2021. We conclude that Judge Bubash’s opinion properly disposes of
the issues presented by Mother in this appeal. Accordingly, we adopt the trial
court’s opinion as our own and affirm the custody order on that basis.
Order affirmed. Application to quash denied. Application to dismiss
denied. Request for counsel fees denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2022
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Circu1a\��!?1Wt2022 09:10 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
D.S .. Opinion
Plaintiff.
. V.
Sup. Ct. No: 646 WDA 2021
H.P. FD 13-006087
Defendant.
BY:
Honorable Cathleen Bubash
440 Ross Street
Suite 5036
Pittsburgh. PA 15219
COPIES TO:
Counsel for Plaintiff:
John M. Schaffranek. Esq.
Lisa Marie Veri & Associates
Manor Building, Penthouse Suite
564 Forbes Ave
Pittsburgh, PA 15219
Counsel for Defendant:
Joseph Chester, Esq.
Caplan & Chester
1309 Law & Finance Building
429 Fourth Ave.
Pittsburgh, PA 15219
23
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY. PENNSYLVANIA
FAMILY DIVISION
Plaintiff.
v.
Sup. Cl. No. 646 WOA 2021
H.P.
No.: FD-13-006087
Defendant.
OPINION
Judge Cathleen Bubash July 7. 2021
H.P. (hereinafter "Mother") appeals from my Moy 3. 2021, Custody Order
entered after trial on D.S.'s (hereinafter "Father") petition for modification and
four contempt petitions. I found Mother in contempt and imposed sanctions. On
the custody modification, I reduced Mother's custody lime. not as punishment for
her contempt. but because I found. based on the evidence presented, that
reduction to be in the child's best interest. My Order should be affirmed.
Pockground
The parties have a daughter. M.A.D .. d.o.b. l /5/2013, (hereinafter "Child") 1•
Mother and Father have been involved in litigation since subject Child was born.
They have been operating under a Custody Order entered after trial in 2016.2 My
Order of October 4, 2016, Order gave Father primary physical custody and
Mother three weekends per month, and a weeknight visit. The parties shared
1
Mother has three older children who are not a part of this case, at least one of whom suffers from autism.
1
A more detailed account of the early volatile hblory or the parties ls set fO63 A.3d 33 J. 339 {Pa.Super. 2013). "It is within the
trial court's purview os the finder of foci to determine which factors are most
salient and critical in each particular case". O.G. v A.B., 234 A.3d 766, (Pa.Super.)
)2020). In this case. I found stability to be extremely important.
On the other hand. Father has demonstrated that he is willing to do
whatever he con lo keep peace, even when Mother's behavior hos been
outrageous. I found that the stability of Father's life and his care for Child makes
his the home where Child can feel safe and cared for
Mother argues Iha! I did not consider the negative effect of limiting Child's
lime with her sibfings. I did consider that; I know that Child is close with her siblings.
and I am aware that Child will not spend as much time with them under the
current Order. As they have a close bond, I do not expect that bond to break.
This was not an Order I entered without consideration of all the factors and
factor 6 concerning siblings was considered. I simply gave more weight to factors
1.2.3.4, and 13, all of which more of an effect on the stability needed in Child's
life. And while Child did not verbalize a specific preference as is contemplated
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by factor 7, other than that she preferred Father's house for all holidays, Child's
testimony demonstrated a preference for Father's custodial time.
Statements Regarding Mental Health
Mother claims that I "engaged in shocking speculation concerning
Mother's medical and psychological status." On April 21, I stated. "Mom has
been doing !he some thing over and over again expecting a different result,
expecting some result that she fantasizes about. but she is not gelling ii and she
doesn't seem lo understand why." (TR. 4/21 p. JO). I suggested. as I and other
hove in the post. that Mother seek therapy.
After Mother was removed from the remote hearing for outbursts. I did
speculate that Mother may have a cognitive or psychological condition which is
preventing her from changing her behavior for the better but stated that I do not
know what the basis of that is. {TR. 4/21 p. 18). Mother has been instructed
numerous times since 2013 to seek individual covnse�ng to gain coping skills and
improve her interactions with Father. I offered my opinions on the matter in on
attempt to help Mother by encouraging her to get help. Even if this could be
interpreted as on overreach. it was not a deciding factor in my custody
determination. It is Mother's behavior. and how it affects her child, that
influenced my determination, along with my weighing of the custody factors.
Evidentiary Support
Lastly, Mother argues that my Nndings and determination of the facts ore
not supported by the record. lri fact. the evidence I relied on to make my
decision was the behavior of the parties and. to a great extent. Mother's own
testimony. The testimony and evidence demonstrated that Mother left Child
uncared for while she gambled or engaged in other activities, even when she
was on vacation away from home with her children. That in itself supports my
determination to reduce Mother's custody lime.
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There was additional testimony which supported a change in custody.
Child testified she does not get enough lo eat at Mother's house and that ii is too
dirty there for her to lake a shower or brush her teeth. Father testified that Mother
continues to shout and scream al him over perceived srights. Child testified that
Mother tells her that her Father is "a bad dad," (TR. o, 171 ).
Moreover. Mother does not seem to recognize her own bad behavior.
asserting that it is not she who is acting inappropriately by leaving her children
unattended or promising gifts if Child wiD ignore Father. Instead she claims Father
brainwashes Child, or others hope lo harm her.
Conclusion
In reaching my decision. I found a majority of the statutory custody factors
heavily favored Father. I found that Child needs the stability and safety which
Father offers. while still maintaining a relationship with the Mother she loves.
Because I found the evidence demonstrated that, despite loving Child, Mother
could not adequately parent her, I found Father's household provided the best
environment for Child and that a reduction in Mother's custody time was
warranted. My decision was based on the testimony of the parties, the evidence
presented and my evaluation of the parties' credibility.
Because my May 3, 2021, Order is based on on appropriate and thorough
consideration of the statutorily mandated factors, is supported the evidence of
record, and is lirmly In Child's best interests, it should be affirmed.
BY THE COURT:
tz
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