G.A. v. J.S. ( 2016 )

J-A21045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
G.A., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
J.S., :
:
Appellee : No. 860 EDA 2016
Appeal from the Order February 10, 2016
in the Court of Common Pleas of Bucks County,
Civil Division, No(s): A06-06-61075-C-32
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 03, 2016
G.A. (“Father”) appeals from the Order granting sole legal and primary
physical custody of S.A. (“Child”), d/o/b 7/25/05, to J.S. (“Mother”), and
directing Father to pay $73,150.00 to Mother in counsel fees. We affirm.
The trial court has set forth an extensive factual and procedural history
in its Opinion, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 3/28/16, at 1-8.
Relevantly, Father and Mother, who never married, are the natural
parents of Child. In March 2006, Father filed a Custody Complaint seeking
primary physical custody of Child. On July 1, 2008, the trial court entered
an Order granting Father and Mother shared legal and physical custody of
Child. On April 29, 2009, Father filed a Petition for Modification of Custody.
Following a custody evaluation and sixteen hearings, the trial court entered
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a Custody Order granting Mother sole legal custody and primary physical
custody, and Father partial physical custody every second and fourth
weekend. The Order also granted Mother custody of Child on most Jewish
holidays and Father custody of Child on most Christian holidays. The trial
court additionally ordered Father to pay $73,150.00 in counsel fees within
90 days of the Order.
Father filed a timely Notice of Appeal and a Pennsylvania Rule of
Appellate Procedure 1925(b) Concise Statement.
On appeal, Father raises the following questions for our review:
1. Did the trial court commit an abuse of discretion or error of
law when it awarded sole legal custody of [Child] to [Mother]?
2. Did the trial court commit an abuse of discretion or error of
law when it awarded primary physical custody of [Child] to
[Mother]?
3. Did the trial court commit an abuse of discretion or error of
law when it [o]rdered [Father] to pay an assessment of
counsel fees in the amount of $73,150.00?
Brief for Appellant at 4 (issues renumbered).
In custody cases,
our scope [of review] 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
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they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
Additionally,
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given 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) (citation
omitted).
We will address Father’s first two issues together. Father contends
that the trial court committed an abuse of discretion in awarding Mother
primary physical and sole legal custody of Child. Brief for Appellant at 32,
35, 37. Father argues that the trial court based its decision upon his refusal
to encourage and permit contact with Mother. Id. at 35-37. Father asserts
that Mother’s testimony was not credible and that Mother’s own actions were
harmful to Child’s best interests. Id. at 35-36. Father claims that Mother
disparaged his character and falsely misrepresented his character at the
hearings. Id. at 36-37. Father also claims that Mother’s history of conduct
toward him raises serious concerns as to her ability to make decisions on
behalf of Child. Id. at 37-38. Father argues that Mother will exclude him
from Child’s life. Id. at 38.
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In any custody case decided under the Child Custody Act (“Act”),1 the
paramount concern is the best interests of the child. See 23 Pa.C.S.A.
§§ 5328, 5338; see also E.D. v. M.P., 33 A.3d 73, 79 (Pa. Super. 2011).
Section 5328(a) provides as follows:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and (2)
(relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
1
See 23 Pa.C.S.A. §§ 5321 et seq. While the Petition for Modification of
Custody was filed prior to the effective date of the Act, i.e., January 24,
2011, the Act applies to this case as hearings were held after the effective
date. See C.R.F., 45 A.3d at 445 (holding that, if the custody evidentiary
proceeding is held after the effective date of the Act, i.e., January 24, 2011,
the provisions of the Act apply even if the modification petition was filed
prior to the effective date).
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(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or member
of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328;2 see also E.D., 33 A.3d at 79 n.2.
2
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services) and, therefore,
was in effect at the time of the hearings in this matter.
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“All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.” J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted). Moreover,
section 5323(d) mandates that, when the trial court awards custody, it “shall
delineate the reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.A. § 5323(d). The trial court may not
merely rely upon conclusory assertions regarding its consideration of the
section 5328(a) factors in entering an order affecting custody. M.E.V. v.
F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014). However, “[i]n expressing
the reasons for its decision, there is no required amount of detail for the trial
court’s explanation; all that is required is that the enumerated factors are
considered and that the custody decision is based on those considerations.”
A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citation and quotation
marks omitted).
In its Opinion, the trial court undertook an analysis of the section
5328(a) factors, and determined that it was in Child’s best interests to
modify the existing custody Order and to grant Mother primary custody
during the school year. See Trial Court Opinion, 3/28/16, at 7-8, 10.
Father’s arguments challenge the trial court’s credibility determinations and
the weight given to the statutory factors, specifically section 5328(a)(1), and
would require this Court to reassess and reweigh the evidence in Father’s
favor. It is well-established that we cannot disturb the trial court’s credibility
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determinations or reweigh the evidence. See E.D., 33 A.3d at 76 (stating
that “with regard to issues of credibility and weight of the evidence, this
Court must defer to the trial judge[,] who presided over the proceedings and
thus viewed the witnesses first hand”); see also Robinson v. Robinson,
645 A.2d 836, 838 (Pa. 1994) (stating that on issues of credibility and
weight of the evidence with regard to custody orders, “appellate courts must
defer to the findings of the trial judge[,] who has had the opportunity to
observe the proceedings and the demeanor of the witnesses.”). Although
Father is not satisfied with the weight that the trial court afforded to the
statutory factors in rendering its custody decision, our review of the record
reveals that the trial court’s findings of fact are thoroughly supported by the
record, and its conclusions are sound. See C.R.F., 45 A.3d at 443 (stating
that this Court cannot reweigh the evidence supporting the trial court’s
determinations as long as there is evidence to support the findings).
Therefore, we conclude that the trial court did not abuse its discretion, and
defer to its custody decision. See id.In his third claim, Father contends that the trial court abused its
discretion in ordering him to pay $73,150.00 in counsel fees. Brief for
Appellant at 8, 32. Father argues that his conduct was not dilatory,
obdurate, or wholly vexatious. Id. at 8, 9-10, 11, 12-14, 15-21, 30.
Father asserts that he did not re-litigate any issue, and that his filings were
based upon his request for primary custody of Child and the custody
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evaluator’s determination that Child should have a primary parent. Id. at 8-
9, 12; see also id. at 13-14 (wherein Father argues that Child is becoming
injured by Mother and Father’s conflict and that one parent should have
primary custody). Father points out that many years have passed since the
filing of the Petition for Modification due to the availability of counsel and the
court, the length of each hearing, and various legitimate Petitions filed by
both parties. Id. at 9-10, 11-12, 15-20, 28-31; see also id. at 29 (wherein
Father argues that the trial court erroneously stated that Father sought to
turn Child against Mother by prolonging litigation, as such a statement was
unsupported in the record). Father specifically claims that all of his
pleadings “alleged separate and legitimate factual circumstances and legal
issues that typically arise in custody cases. … [A]ll of [Father’s] filings were
filed with the sole purposes of promotion of [C]hild’s best interest.” Id. at
20.
Father also argues that the trial court failed to give weight to Mother’s
obdurate and vexatious behavior. Id. at 21. Father contends that Mother
fabricated encounters between Father and Mother to the custody evaluator
and parent coordinator. Id. at 21, 22-23; see also id. at 21-22 (wherein
Father argues that Mother’s friend stated that Father pushed Mother in the
face while Mother was holding Child, and Father called Mother a kike).
Father further contends that Mother falsely accused him of being part of the
Russian mafia, breaking into Mother’s home and car, and having a drinking
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problem. Id. at 24-27. Father claims that Mother’s actions required him to
respond by filing pleadings and addressing the issues in court. Id. at 27-28.
Father additionally asserts that the trial court justified its award of counsel
fees by pointing out that he was able to pay his legal fees, totaling
$156,098.58. Id. at 31. Father argues that he should not be penalized
based upon his ability to pay the fees. Id. at 31-32.
Pursuant to section 5339, in a custody matter, “a court may award
reasonable interim or final counsel fees, costs and expenses to a party if the
court finds that the conduct of another party was obdurate, vexatious,
repetitive or in bad faith.” 23 Pa.C.S.A. § 5339.3 “Our standard of review
of an award of counsel fees is well settled: we will not disturb a trial court’s
determination absent an abuse of discretion.” A.L.-S., 117 A.3d at 361.
While a separate evidentiary hearing is preferred, “[i]f the record supports a
trial court’s finding of fact that a litigant violated the conduct provisions of
the relevant statute providing for the award of attorney’s fees, such award
should not be disturbed on appeal.” Kulp v. Hrivnak, 765 A.2d 796, 799
(Pa. Super. 2000) (citation omitted).
The trial court addressed Father’s claim as follows:
3
We note that “[o]bdurate is defined as unyielding or stubborn.” In re
Padezanin, 937 A.2d at 484. “A suit is ‘vexatious,’ such as would support
an award of counsel fees in a child custody case, if it is brought without legal
or factual grounds and if the action served the sole purpose of causing
annoyance.” A.L.-S. v. B.S., 117 A.3d 352, 362 (Pa. Super. 2015).
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Father’s conduct was indeed repetitive, and his Petitions sought
to merely rehash and reargue issues decided years before.
[Child] is very much aware of this ongoing battle between the
parties. Additionally, the Parent-Coordinators assigned to this
case all determined that Father will continually reargue any
issue, no matter how insignificant. Father’s attempts at
obstruction and his dilatory conduct were both well-established
and not contradicted, and an award of fees to Mother’s counsel
was therefore entirely appropriate.
Furthermore, Father himself has requested that [the trial c]ourt
award full custody to one parent or the other. He believes that a
shared custody arrangement would not be in [Child’s] best
interests. Despite this position, sixteen (16) hearings have been
held, lasting for nearly the entirety of [C]hild’s ten[-]year life.
Trial Court Opinion, 3/28/16, at 11; see also id. at 2-7 (wherein the trial
court details, inter alia, Father’s combative behavior and conduct with the
Parent-Coordinators, Father’s actions toward Mother, and Father’s failure to
abide by court orders). We conclude that the record in this case supports
the trial court’s finding that the conduct of Father was obdurate and
vexatious. See id. at 11.
Further, contrary to Father’s claims regarding Mother’s conduct, we
conclude that her alleged misconduct did not negate Father’s conduct and
behavior during the resolution of the custody matter. See 23 Pa.C.S.A.
§ 5339. Moreover, Father’s ability to pay his own counsel fees does not
demonstrate that the trial court abused its discretion in awarding Mother
counsel fees in this matter. Thus, we will not disturb the trial court’s
decision to award counsel fees to Mother.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2016
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Circulated 10/20/2016 03:03 PM
IN THE COURT OF COMMON PLEAS
BUCKS COUNTY, PENNSYLVANIA
1111~1~1``111111
Case#: 2006-61075 C 809 11171859
FAMILY DIVISION Code: 5214 Judge:18
Patricia L. Bachrle Bucks County Prothooctary
Rcpt. 21494454 312612016 1·os·43 PM
G. A.
No. 2006-61075-C
v.
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CHILDREN'S FAST TRACK
APPEAL
OPINION
G. A.
("Father") appeals from this court's Order .of February 10, 2016,
Sc A·
awardingscle legal custody and primary physical custody of the child, (D.O.B. 7 /25/2005)
J. ~-
to ("Mother"). We also entered an Order directing Father to pay $73,150.00 to
Mother as counsel fees.
This appeal has been designated as a "Children's Fast Track Appeal." Therefore, this Court
is required pursuant to Pa. R.A.P. 1925(a)(2)(ii) to file an Opinion specifying the reasons for our
Order within thirty (30) days of receipt of the Notice of Appeal and the Concise Statement of
Errors Complained of on Appeal.
The complete Notes of Testimony have not yet been transcribed, however, the Notes of the
February 10, 2016 Hearing and Order (116 pages) have been transcribed and are being forwarded
with this Opinion. A written copy of our Order, dated March 16, 2016, is also attached.
Litigation in this matter commenced on March 28, 2006, when Father filed a Petition for
Custody of Minor Child. Since then, there have been sixteen (16) hearings at the request of Father,
from June 29, 2010 until the final hearing on February 10, 2016.
In our Order of February 10, 2016, this Court summarized and reviewed the evidence
presented.
Dr. Anthony Pisa was the agreed custody evaluator when the case began in 2006. He
immediately determined that this was a "high-conflict case." N.T. 2/10/2016, 73. Dr. Pisa
expressed sincere doubts that the parties had the ability to successfully co-parent, and that the
situation was "toxic" for the child. N.T. 2/10/2016, 75.
Dr. Pisa was also appointed as the assigned Parent-Coordinator and made another
important determination. He remarked that, no matter what decision he entered in that capacity,
"no matter how minor or mundane," Father constantly refused to accept his decisions. N.T.
2110/2016, 77. He also noted that Father continually lashes out at Mother and criticizes her abilities
as a parent if Father does not receive a favorable decision from the Parent-Coordinator. N.T.
2/10/2016, 78. Dr. Pisa also described Father as "angry" and believes Father is purposefully
making life exceedingly difficult for Mother and the child .. N.T. 2/10/2016, 83.
Dr. Steven Cohen, a psychologist who also acted as a later Parent-Coordinator also
testified. In August 2012, Dr. Cohen resigned from this case. Dr. Cohen's remarks concerning
the case were quite telling: "This particular case is the most difficult one in my many years of
coordination." Dr. Cohen explained that Father's argumentative behavior was the reason for his
resignation, and that Father continues to argue about decisions made as early as 2008. N.T.
2/10/2016, 88. Dr. Cohen was unable to utilize the Parent-Coordinator process because of Father's
course of conduct in constantly thwarting this process. In Dr. Cohen's view, this family, without
the intervention of a Parent-Coordinator, would be "doomed." N.T. 2/10/2016, 89.
Additionally, Father became "verbally abusive" on multiple occasions to Dr. Cohen's staff.
N.T. 2/10/2016, 89-90. In Dr. Cohen's view, Father, throughout these proceedings, demonstrated
a lack of good faith. N.T. 2/10/2016, 90. Dr. Cohen, in communicating with this Court, declared
that "I am resigning as the Parent-Coordinator effective immediately." N.T. 2/10/2016, 87. He
continued:
Fr.1..-the-r
The principal reason for this difficulty is the behavior and attitude of-.
He has always been exceedingly argumentative, never accepting a decision without
arguing about it, and continues to argue about decisions made long ago. He
continues to try to argue about decisions made as early as 2008. So he won't let it
rest.
2
In the beginning, I had face-to-face meetings with the parties and obtained
agreements from both parties, only to have- later deny that he agreed
to those negotiated issues. fc...thex
N.T. 2/10/2016.
Following Dr. Cohen's resignation, Richard Moore, Esquire was appointed as the new
Parent-Coordinator in late 2012. N.T. 2/10/2016, 96.
Throughout the many hearings before this Court, we heard additional testimony regarding
Father's conduct, including an accusation that Father unilaterally removed the Child from school,
only to then take her to a shopping mall. N.T. 2/10/2016, 76. Father and Mother were also
quarreling over whether their daughter should take violin or piano lessons. Dr. Cohen had
previously ordered that the Child take violin lessons, and once again, Father became combative
and discontinued her lessons. N.T. 2/10/2016, 97.
On several occasions, Father would deliberately delay in dropping off the child to Mother,
knowing that Mother and daughter had previously scheduled events planned for that day. N.T.
2/10/2016, 93-94. As an example, Father dropped off the child to Mother over forty minutes late
on Mother's Day, 2012, despite knowing they had a special breakfast planned at 8:00 a.m. sharp.
For Hanukkah, Father dropped off Child four hours late, causing Mother and Child to miss a pre-
arranged performance of "The Nutcracker" in New York City. N.T. 2/10/2016, 103-104. There
was also evidence that Father would send in excess of fifty (50) e-mails and place over twenty (20)
telephone calls to Mother on days which Father knew were important to Mother and Child, such
as pre-scheduled and pre-approved Jewish holidays. N.T. 2/10/2016, 77.
Additionally, there was evidence that Father became verbally abusive towards Mother on
numerous occasions, including many instances in the presence of the child. N.T. 2/10/2016, 101,
103. On at least one occasion, the altercation between Father and Mother turned physical. N.T.
2/10/2016, 102.
On February 10, 2016, a sixteenth hearing was held. We again noted Father's combative
and argumentative nature throughout the course of this litigation since 2006, and stated:
3
We've had three evaluations: July 2007, a follow-up in November of 2007, a final
one six years ago, January 25th, 2010. We have appointed a Parent-Coordinator in
2008. Dr. Cohen resigned in 2012. We vacated the Parent-Coordinator Order
because of Dr. Cohen's resignation. We appointed Richard Moore as a Parent-
Coordinator. Same process, different coordinator, same result: Father will not
accept the decision.
[ ... ]
For whatever reason, Father will not abide by an Order, no matter who enters it, no
matter how well-reasoned, no matter how much it may be in the interest of [the
Child], and that is going to be frightening for this girl. And even [Father's counsel]
says that he can anticipate problems in the future, and my obligation is to make sure
there are no problems in the future.
N.T. 2/10/2016, 104-105.
Following our summary of the testimony, we issued our Custody Order. Prior to the entry
of our Order, Father expressed his desire, through counsel, that, regardless of the outcome, Father
"want]s] to leave here with one parent having primary custody." N.T. 2/10/2016, 106.
In our Order of February 10, 2016, we said at various points:
When we delve deeper into Dr. Pisa some months later, he said something very
telling. He sail)i} he had serious issues with Father's judgment on many issues.
For example, apparently had a rash, and Father tended§1§if@amethat upon
the Mother rather than contacting the child's pediatrician; that was kept out
of school by the Father because he alleged that she's sick, and yet there was
evidence that despite this alleged illness, that Father took the child to the mall.
N.T. 2/10/2016, 75-56.
When he (Dr. Pisa) questioned the Father's judgment, he also highlighted the fact
that Father understoo~h~other wa1=c~ed with certain Jewish holidays.
Please, understand, , ) , that this Court, as should be all
Courts, are religiously neutral. If the child, by agreement, is raised in the Jewish
faith, we leave that to the parents. If the parents decide the child should be raised
in the Christian faith, that's a parental decision. If you decide that she should be
Wiccan, we'll abide by that. But it's clear and abundant that the parties have, at
least, a tacit agreement that Father would celebrate the Christian holidays and
Mother would celebrate the Jewish holidays because they were important to each
other.
4
f(}vth.Q..r
So, knowing that, what does - do? He, again being passively-
aggressive, calls Mother 20 or more times on a Jewish holiday. He knows that will
be disruptive. He knows it will push Mother's buttons. He knows she'll be upset.
N.T. 2/10/2016, 76-77.
We also noted in our findings as follows:
So we go on to other hearings, and now the message is clear: There's something
wrong here. Father is not abiding by reasonable, rational decisions. Father is on
notice that he should not keep the child out of school on his whil£. orjaprice, except
he continues to do so. We heard the testimony about keeping t'out of school.
It makes no impression on him. He continues the same type of conduct.
N.T. 2/10/2016, 79.
[Dr. Pisa] said "Father can easily be triggered to anger. So there is evidence that
he was assaultive to the Mother.
N.T. 2/10/2016, 79-80.
Then we had heard testimony that on a Jewish holiday you had continually,
knowing it was important to Mother, and therefore, important to the child, made
about a hundred calls to Mother. You would think that would send a message that
it shouldn't happen again; but we find out that on another holiday there were at
least 14 cell phone calls to Mother. The telephone records confirm that on a
holiday, Rosh Hashanah and Yorn Kippur - again important to the child, just as
important to the Mother - 31 telephone calls were made. So, of course, Dr. Pisa
questions the rationality of this behavior and the Father's judgment.
N.T. 2/10/2016, 81-82.
We also noted:
[Dr. Pisa] said that Father habitually - not once in a while, not by happenstance -
drops the child off late at The Goddard School. There are always excuses for
lateness, but this is a pattern. He does it, we believe, and we find as a fact, to irritate
the Mother. And what happens? We believe the testimony. Because Father is late,
Mother is late for work. But his is a pattern of activity where he hasn't gotten his
way, he hasn't been able to impose his will, so he will make a studied attempt to
affect the Mother without thinking at all how this may affect•••
LhitJ
Again, she is still young, but it shows what Dr. Pisa has c,fJJ@.><-d: He described
Father as rigid. He said, no matter what you say to •- , no matter what
decision you make, no matter how well-reasoned, no matter how often you explain
it, he refuses to accept it. That is a continuing pattern.
N.T. 2/10/2016, 82-83.
5
We further highlighted:
Dr. Pisa is still on the witness stand. Now it is July of 2011. is getting
older; Dr. Pisa is getting richer. He says that Father, despite all this litigation, is
still as rigid as ever. He is inflexible. He not only won't follow an Order that Dr.
Pisa imposes, but he is convinced that Father won't even follow a Court Order. The
Father is a bright guy, and he has to know that if he doesn't follow a Court Order,
serious consequences could result. But at least the evaluator believes that this is
lost on Father.
Father won't listen to anybody who makes a decision about anything in this case.
N.T. 2/10/2016, 85.
[Father's counsel] has said this w~one-time misstep. No, because we accept Dr.
Cohen's statement that r"' has shown "a pervasive pattern of not
responding to questions directly, arguing with decision~wrd he does it after-the-
fact, after the decision is made. And he says that I has been unwilling
or unable to use the process of Parent-Coordinator in any positive, productive way.
N.T. 2/10/2016, 88-89.
We also noted that Father's aggressive responses were not only directed toward Mother:
(Father] became very argumentative and verbally abusive with [Dr. Pisa's] office
manager, who tried to reason with him for 20 minutes. And despite what [Father's
counsel] says, this was not a one-and-done incident. [Dr. Pisa] says, "This is not
the first time he has been argumentative with my office manager."
N.T. 2/10/2016, 89-90.
With regard to Father's continuing litigation, we noted:
We still have issues about what does for a living. It's not my business,
but you're curious because somebody is financing this war. [Father] tells me that
he gets loans, not only from relatives, but from one of his best friends. And I ask
him, and he was asked, how do you support yourself? And he tells me on $300.00
per week. I don't believe that. It's possible to get by on a pittance, but it tends to
show me there is some serious issues with his credibility.
N.T. 2/10/2016, 92.
We note that, despite Father's contention that he makes $300.00 per week, his legal fees,
totaling $156,098.58 have been paid in full.
We also contrasted Mother's attempts at co-parenting with Father's refusal to co-parent:
6
C\\~l~is
Mother does keep Father advised of - activities, medical information,
school programs, [and] vacations. She provides constant, continuing updates.
She's very specific. Dr. Pisa recognizes that, but then resigns.
N.T. 2/10/2016, 96.
In issuing our final Order, we outlined the following considerations:
Which party is more likely to encourage and permit frequent contact? Clearly the
Mother.
Has there been past abuse committed? Not tragic abuse in the sense that somebody
wound up in the hospital or had a loss of a member or severe pain, but it's been
there. It hasn't been a risk of harm to the child, but it could be. We tend to believe,
given [Father]'s past behavior, that this could occur. We've heard of emotional
abuse. I'm sure that's to some degree on both sides.
There doesn't seem to be any difficulty with physical safeguards for supervision of
the child. Each party is clearly capable of performing duties on behalf of the child.
Despite all of this, I still think that -is a good father. He's just a bad
boyfriend. Fn.-+wir
Extended family is neutral. They have enough outreach, if necessary. There's no
siblings.
The child doesn't have a preference, nor do we care if the child did. But I would
guess that her preference, despite her maturity- and it's at a high level- she would
say my preference is that my parents don't fight, but I can't enforce that.
There has been, at least superficially, and attempt by [Father] to turn the child
against the other parent by castigating the Mother, calling her names, especially if
it happens in front of her, but more importantly, by challenging every decision. The
child knows that there's a conflict, and while it's not violence, that has been the end
result.
Both Mother and Father can maintain a loving, stable, consistent, nurturing
relationship with and more adequately, both can address her emotional
needs. C..hilJ
Both can easily address her educational needs, except that's Mother's decision
hereinafter. Blessedly the child has no special needs.
The parties live close to each other - Newtown-Holland; both nice neighborhoods,
both within a very short distance. It's not an issue.
Both parties have in the past been able to make appropriate childcare arrangements.
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What is the level of conflict between the parties? Strong. High.
What about their ability to cooperate with one another? Not good. They're just
going to have to do it, otherwise one or both will be back into court, someone will
pay more attorney's fees, and someone could go to jail.
N.T. 2/10/2016, 110-112.
Upon these considerations, we granted sole legal custody and primary physical of the child
to Mother. We directed that Father have custody of the child for the second and fourth weekend
of every month, from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Father is to have custody of
the child for Father's Day, and conversely, Mother shall have custody of the child for Mother's
Day. Father is also to have custody of the child for Christmas Eve, Christmas Day, Good Friday,
and Easter. Mother is to have custody for the two days of Rosh Hashanah and Erev Yorn Kippur.
N.T. 2/10/2016, 106-109.
In addition to awarding to custody to Mother, we also directed that Father pay $73,150.00
in attorney's fees to Mother's counsel. We found that the past decade of conduct on the part of
Father was "dilatory, wholly vexatious and entirely obstreperous." While we certainly recognize
that Father has a right to petition for a change of custody, "he has no right to attempt to thwart the
best interests of his child through the courts, and that's what he's done." NT. 2/10/2016, 109-
110.
Father raises the following nine (9) issues on appeal, verbatim:
1. Whether the lower Court abused its discretion or committed an error of law
when it awarded an assessment of $73,150.00 in counsel fees to
Defendant/Appellee's Counsel, in contra to due process requirement when it
was raised sua sponte by the Court.
2. Whether the lower Court abused its discretion or committed an error of law
when it awarded an assessment of $73,150.00 in counsel fees to
Defendant/Appellee's Counsel, based on unreasonable conclusions in light of
trial Court's sustainable findings of fact.
3. Whether the lower Court's Order awarding an assessment of $73,150.00 in
counsel fees to Defendant/Appellee's Counsel was confiscatory in nature, based
on unreasonable conclusions in light of the trial Court's sustainable findings of
fact.
4. The lower Court's award [of] an assessment of $73,150.00 in counsel fees to
Defendant/Appellee's Counsel was not supported by the evidence presented
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pursuant to 23 Pa. C.S.A. §5339; Appellant/Father was not obdurate, vexatious,
repetitive, or acting in bad faith in his request for hearings, but rather, was
exercising his right as the parent of the minor child acting in the child's best
interest.
5. Whether the lower Court's award [ of] an assessment of $73, 150.00 in counsel
fees to Defendant/Appellee's Counsel was unreasonable in light of the evidence
presented on the record and in the circumstances of this case because the lower
Court failed to give appropriate weight to the Appellee's own attempts to
indulge in vexatious and repetitive presentation and testimony.
6. Whether the lower Court erred when it failed to make a finding of shared legal
custody based upon its sustainable findings and the evidence presented.
7. Whether the lower Court's Order awarding sole legal custody to Appellee was
unreasonable in light of the evidence presented on the record and the
circumstances of this case because, when considering the best interests of the
child, the lower Court failed to give appropriate weight to the Appellee's
ongoing attempts to exacerbate situation between parties thus portraying
Appellant/Father in a false lights, which is problematic in light of the lower
Court's conclusion that Appellant does not cooperate with Mother and refuses
to co-parent, when Appellee/Mother is guilty of same.
8. The lower Court's award of sole legal custody to Defendant/Appellee was not
supported by the evidence presented under the custody factors enumerated in
23 Pa. C.S.A. §5328(a), the majority of which weighed in favor of
J.
AppellantJFather, and was thus unreasonable in light of the lower Court's
sustainable findings.
9. Whether the lower [C]ourt abused its discretion or conunitted an error of law
when it awarded Defendant/ Appellee, S3 I,sole physical custody of
the minor child based upon unreasonable conclusions in light of the trial Court's
sustainable findings of fact.
Concise Statement of Errors Complained of on Appeal, March 11, 2016.
We will first address Appellant's custody arguments, and then address the imposition of
attorney's fees.
It is well-established that judges are granted broad discretion in custody matters. The
Superior Court of Pennsylvania has held that:
"In reviewing a custody order, our scope is of the broadest type and our standard is
(an] abuse of discretion ... Uitimately, 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."
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MO. v. JTR., 85 A.3d, 1058, 1061 (Pa. Super. 2014) (citingV.B. v. J.E.B., 55 A.3d 1193,
1197 (Pa. Super. 2012)).
Father's contends that the Custody Order was not supported by the evidence deduced at
trial, and that the factors enumerated in 23 Pa. C.S.A. §5328(a) were not properly considered
because the majority of factors weighed in favor of Father.
Superior Court precedent does not require a specific level of detail when issuing a Custody
Order. All that is required is a consideration of the enumerated factors, and that "the custody
decision is based upon these considerations." MJM v. J'1.L.G., 63 A.3d 331, 336 (Pa. Super.
2013) (appeal denied 68 A.3d 909). Undoubtedly, a review of the record in this case illustrates
that the enwnerated factors were adequately considered in issuing this Order.
Father's contention that the custody Order was unreasonable because "a majority [of the
enumerated factors] weighed in favor of Appellant/Father" is unsupported by the record. The
Notes of Testimony from the February 10, 2016 illustrate that, if anything, the majority of the
considerations weighed in favor of Mother and against Father. Furthermore, deciding a proper
custody arrangement involves more than a raw tallying of factors, as Father would seem to suggest.
It is clear that "it is within the trial court's purview as the finder of fact to determine which factors
are most salient and critical in each particular case." Id. at 339. Therefore, even if a greater number
of factors weighed in favor of Father as compared with Mother, we would not be obligated to
award custody on that basis alone.
Here, we found Father's refusal to encourage and permit frequent contact with Mother to
be most compelling. Father's history of emotional outbursts at Mother in the presence of the child
is also an important consideration, as well as Father's propensity to tum the child against Mother
by continually prolonging litigation. This is contrary to the child's best interests. This Court
therefore suggests that the consideration of the factors outlined in 23 Pa.C.S.A. §5328(a) was more
than sufficient.
Attorney's fees may be awarded to a party in a custody matter pursuant to 23 Pa.C.S.A.
§5339. Under that section, a court is permitted to award "reasonable interim or final counsel fees,
costs, and expenses to a party if the court finds that the conduct of another party was obdurate,
vexatious, repetitive, or in bad faith. 23 Pa.C.S.A. §5339 (emphasis added).
10
It is well-settled that an award of attorney's fees will only be set aside if the trial court
abused its discretion, or the Court failed to follow proper legal procedures or misapplied the law.
A.L-S v. B.S., 117 A.3d 352, 361 (Pa. Super. 2015) (See also, Don Yuan Chen v. Saidi, 100 A.3d
587, 592 (Pa. Super. 2014). No evidentiary hearing is required in determining whether an award
of counsel fees is appropriate, when the facts necessary to make such a finding are admitted and
undisputed. Kulp v. Hrivnak, 765 A.2d 796 (Pa. Super. 2000).
Here, however, Father's conduct was indeed repetitive, and his Petitions sought to merely
rehash and reargue issues decided years before. The child is very much aware of this ongoing
battle between the parties. Additionally, the Parent-Coordinators assigned to this case all
determined that Father will continually reargue any issue, no matter how insignificant. Father's
attempts at obstruction and his dilatory conduct were both well-established and not contradicted,
and an award of fees to Mother's counsel was therefore entirely appropriate.
Furthermore, Father himself has requested that this Court award full custody to one parent
or the other. He believes that a shared custody arrangement would not be in his daughter's best
interests. Despite his position, sixteen (16) hearings have been held, lasting for nearly the entirety
of the child's ten year life.
We therefore urge that our Custody Order of February 10, 2016, awarding primary physical
custody and sole legal custody to Mother, as well as awarding Mother's counsel $73,150.00 in
attorney's fees, be affirmed.
/ / /
DATE
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