M.H.L. v. M.K.L. ( 2019 )

J-A08015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.H.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
M.K.L. : No. 1308 WDA 2018
Appeal from the Order Entered August 13, 2018
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD17-007022-016
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 11, 2019
Appellant, M.H.L. (“Father”), files this appeal from the order dated
August 13, 2018, and filed August 16, 2018,1 awarding the parties shared
legal custody, M.K.L. (“Mother”) primary physical custody, and Father partial
physical custody of their children, B.L., M.L., and E.L. (collectively, the
“Children”). After careful review, we affirm the trial court’s order.
The trial court summarized the relevant procedural history as follows:
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1While the docket reflects a filed date of August 16, 2018, there is no notation
on the docket that notice was given and that the order was entered for
purposes of Pa.R.C.P. 236(b). See Frazier v. City of Philadelphia, 735 A.2d
113, 115 (Pa. 1999) (holding that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given”); see also Pa.R.A.P. 108(a) (entry of an order is designated as “the
day on which the clerk makes the notation in the docket that notice of entry
of the order has been given as required by Pa.R.C.P. 236(b)”). Thus, the
appeal period was not triggered. Although we consider the matter on the
merits, we caution the Court of Common Pleas of Allegheny County as to
compliance with the rules with regard to the entry of orders.
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The parties have litigated extensively regarding this matter.
Father filed an Emergency Petition for Special Relief, which was
granted on January 26, 2017. The resultant Order stated Mother
could not relocate the children outside of Allegheny County and
that the parties were to proceed through Generations. An Interim
Physical Custody Order was entered on February 6, 2017 for
shared custody of the Children on a rotating three (3) week basis.
Under this Order, Father had physical custody from Thursday after
school until Sunday at 6 p.m., for the first two (2) weeks. On
Wednesdays of his off-week, Father had physical custody of the
Children after school until the start of school on Thursday. Mother
had physical custody at all other times.
Following a failed conciliation, the case was to be scheduled for
psychological evaluations by an Order dated March 20, 2017.
Mother presented two (2) Petitions for Special Relief on March 29,
2017, and Father presented one (1). The resultant Orders of the
same date granted that the Children may attend summer camp,
and that the parties would begin immediately using My Family
Wizard for all non-emergency communications. Father’s vacation
time with the Children was also outlined in the Orders.
On April 17, 2017[,] psychological evaluations were ordered.
Father filed a Petition for Special Relief on June 19, 2017, and
Mother was ordered to provide Father a date for makeup custody.
Father amended his Counterclaim to include a claim for primary
physical custody on July 14, 2017.
Mother filed an Emergency Petition for Special Relief on July 19,
2017 regarding a trip to Washington[,] D.C. that Father wanted
to take the Children on. During the trip, Father would be required
to attend a conference that the Children would not be able to
accompany him to. In the Order, Father was ordered to provide
child care arrangements for the Children during that time.
Dr. Neil Rosenblum was appointed to conduct the evaluation. Dr.
Rosenblum’s report and recommendation was released on July 31,
2017. Dr. Rosenblum recommended an alternating weekend
schedule with Children spending long weekends with Father from
Thursday night through Monday morning. Father would have the
Children for ten (10) of twenty-eight (28) nights.
On October 2, 2017, Mother presented a Petition for Special Relief
requesting that Dr. Rosenblum re-interview the parties and
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supplement his July 31, 2017 report. Mother contended that
Father’s recent behavior negatively affected the Children’s
relationship with Father. By Order dated October 2, 2017, Dr.
Rosenblum was appointed to re-interview the parties and anyone
else he deemed appropriate. Following those interviews, he was
to issue a supplement to his July 31, 2017 report. In his
supplemental report, Dr. Rosenblum again recommended
alternating weekends, but from Friday through Sunday evenings
as opposed to the long weekends that he had previously
recommended. He also recommended a Thursday night dinner or
overnight option.
Trial Court Opinion, 10/17/18, at 1-3 (footnote omitted); see also Findings
of Fact, 8/15/18, at 1-3.
The trial court conducted a custody hearing on July 30, 2018 and July
31, 2018. Mother and Father, both represented by counsel, each testified on
their own behalf. Father additionally presented the testimony of an electrician,
a neighbor, and Sergeant John Burkett, a police officer with the Edgeworth
Police Department. Mother presented the testimony Neil Rosenblum, Ph.D.,
a clinical psychologist and administrative partner of Allegheny Forensics
Associates, who conducted two psychological evaluations for custody.2 Dr.
Rosenblum was accepted by the court as an expert over the objection of
counsel for Father. See N.T., 7/31/18, at 387-88. The court also interviewed
the children in camera in the presence of both counsel. See N.T., 7/30/18,
at 143-71.
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2 Dr. Rosenblum’s initial evaluation, dated July 31, 2017, was admitted as
Mother’s Exhibit N. Dr. Rosenblum’s second or supplemental evaluation,
dated December 26, 2017, was admitted as Mother’s Exhibit O.
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By order dated August 13, 2018, and filed August 16, 2018, the trial
court awarded the parties shared legal custody of the Children. See Final
Custody Order, 8/16/18, at ¶ 2. The court further awarded Mother primary
physical custody and Father partial physical custody every other weekend
from Friday after school until Sunday at 6:00 p.m. and Thursdays after school
until 9:00 p.m. See id. at ¶ 1. The court additionally provided for a vacation
and holiday schedule; daily telephonic and electronic contact with the
Children; as well as continued family counseling and co-parenting counseling.
See id. at ¶¶ 6, 11, 12, 13, 14. Notably, the court further issued Findings of
Fact, also dated August 13, 2018, and filed August 15, 2018, which addressed
each of the custody factors pursuant to Section 5328(a). See Findings of
Fact, 8/15/18, at 3-17.
On September 12, 2018, Father, through counsel, filed a notice of
appeal along with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, the trial court issued
an opinion filed October 17, 2018.3
On appeal, Father raises the following issues for our review:
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3 Subsequent to this appeal, Mother filed an Emergency Petition resulting in
orders dated September 20, 2018 and October 11, 2018, which Father
appealed. This appeal was docketed at Superior Court No. 1494 WDA 2018
and consolidated with the instant appeal sua sponte. Pursuant to a per curiam
order dated April 3, 2019, and by agreement of the parties, the appeal
docketed at 1494 WDA 2018, was remanded for further proceedings and
jurisdiction of this Court was relinquished. See Order, 4/3/19.
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1. The [c]ourt erred in appointing Dr. Rosenblum as a custody
evaluator as Dr. Rosenblum was not qualified to perform custody
evaluations;
2. The [c]ourt erred in ordering two custody evaluations, and
subjecting the Children to the same;
3. The [c]ourt erred in allowing Dr. Rosenblum to conduct the
second custody evaluation as he was not qualified to perform
custody evaluations;
4. The [c]ourt erred in failing to strike Dr. Rosenblum’s reports
and/or testimony;
5. The [c]ourt erred in allowing Dr. Rosenblum to testify as Dr.
Rosenblum was not competent to testify;
6. The [c]ourt erred in allowing Dr. Rosenblum to testify in this
matter as Dr. Rosenblum was not qualified to testify;
7. The [c]ourt erred in awarding primary custody to Mother;
8. The [c]ourt erred in fashioning a custody schedule that deprived
the Children of significant time with their Father, specifically in
providing only four (4) overnights per month to Father;
9. The [c]ourt erred in failing to enter the Custody Order with a
custody schedule that was in the best interest of the Children;
10. The [c]ourt erred in relying heavily on the Children’s
preference in fashioning his Order;
11. The [c]ourt erred in [] failing to award equally shared or
primary physical custody to Father;
12. The [c]ourt failed to consider all factors under the custody
statute in fashioning its Custody Order;
13. The [c]ourt erred in finding that Mother is more likely than
Father to encourage and permit frequent and continuing contact
between the children and the other parent;
14. The [c]ourt erred in finding that Father does not encourage
the children to contact Mother;
15. The [c]ourt erred in relying on the children’s testimony
primarily to reach the conclusion that Father does not encourage
the children to contact Mother;
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16. The [c]ourt erred in finding that while Father permits the
children to contact Mother, he does so in a manner that is
disapproving, which causes undue stress on the children;
17. The [c]ourt erred in finding that the children expressed a well-
reasoned preference to spend more time with Mother;
18. The [c]ourt erred in finding that the children are mature in
judgment and their judgment is sound;
19. The [c]ourt erred in finding that the children are not ready to
have a shared physical custody relationship with Father;
20. The [c]ourt erred in its finding that neither parties’ conduct
was an intentional attempt to turn the children against the other
parent;
21. The [c]ourt erred in failing to conclude that Mother’s conduct
was an intentional attempt to turn the children against Father;
22. The [c]ourt erred in making a finding that the children’s
exposure to certain events was not an intentional act by either
party to alienate the children from the other parent;
23. The [c]ourt erred in failing to recognize Mother’s deliberate
attempts to alienate the children from Father;
24. The [c]ourt erred in finding that Mother is more likely than
Father to provide for the children’s emotional needs;
25. The [c]ourt erred in finding that Father is unable to meet the
children’s emotional needs at this time;
26. The [c]ourt erred in finding that Mother is more likely than
Father to attend to the children’s emotional and special needs;
27. The [c]ourt erred in finding that Mother is more likely than
Father to meet the children’s daily emotional needs;
28. The [c]ourt erred in finding that Father struggles to meet the
children’s special and emotional needs;
29. The [c]ourt erred in finding that Mother has shown a
willingness and ability to cooperate with Father;
30. The [c]ourt erred in finding that Father has the ability to
cooperate with Mother, but he rarely shows a willingness to do so;
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31. The [c]ourt erred in finding that Father harbors resentment
towards Mother, which impedes his ability to co-parent;
32. The [c]ourt erred in finding no compelling evidence was
presented at either party, or a member of their household had a
history of abusing drugs or alcohol;
33. The [c]ourt erred in finding that no evidence was presented
that either party, or a member of their household, has a mental
or physical condition;
34. The [c]ourt erred in ignoring the evidence offered of Mother’s
depression, instability and the need for medication therefore; and,
35. Plaintiff reserves the right to raise additional matters
complained of on appeal following examination of the trial
transcript.
Concise Statement of Errors Complained of on Appeal, 9/12/18.4
However, prior to examining Father’s claims on appeal, we address
Mother’s claims of deficiencies in Father’s brief. Specifically, Mother
challenges Father’s brief as it relates to his Statement of Questions Involved.
See Mother’s Brief at 1-2.
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4 Father does not specifically delineate the issues he wishes to raise in the
Statement of Questions Involved section of his brief. Rather, he instead
references his Rule 1925(b) statement. See Father’s Brief at 10. Father
states,
Appellant hereby refers to and incorporates his Concise Statement
of Errors Complained Of On Appeal Pursuant to Pa. R.C.P. 1925(b)
Dated September 12, 2018 (Appendix C) . . . for a precise
statement of the issues involved in these consolidated appeals for
brevity’s sake and in deference to the page limit provided by the
Rules of Appellate Procedure.
Id. We observe that Father additionally included two supplementary issues
germane to the subsequent appeal, which, as noted above, was remanded by
agreement. See id.
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Our Rules of Appellate Procedure establish and set forth in detail the
specifics as to each of the required sections of a brief. See Pa.R.A.P. 2114-
2119. Of particular importance, an appellant must include a statement of
questions involved. See Branch Banking & Trust v. Gesiorski, 904 A.2d
939, 942 (Pa. Super. 2006); Commonwealth v. Maris, 629 A.2d 1014, 1016
(Pa. Super. 1993). Rule 2116 addresses the statement of questions involved
and provides as follows:
(a) General rule.—The statement of the questions involved
must state concisely the issues to be resolved, expressed in the
terms and circumstances of the case but without unnecessary
detail. The statement will be deemed to include every subsidiary
question fairly comprised therein. No question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby. Each question shall be followed by an answer
stating simply whether the court or government unit agreed,
disagreed, did not answer, or did not address the question. If a
qualified answer was given to the question, appellant shall indicate
the nature of the qualification, or if the question was not answered
or addressed and the record shows the reason for such failure, the
reason shall be stated briefly in each instance without quoting the
court or government unit below.
We have held that an appeal may be dismissed or quashed where the
deficiencies of an appellant’s brief are such that we are unable to conduct a
meaningful review. See Karn v. Quick & Reilly, Inc., 912 A.2d 329, 337
(Pa. Super. 2006); Branch Banking & Trust, 904 A.2d at 943; Maris, 629
A.2d at 1017. As we indicated in Maris:
“This Court possesses discretionary authority to quash, dismiss or
deny allowance of appeal based upon the substantial defects of
appellant’s brief. Pa.R.A.P. 2101.” Commonwealth v. Ely, 381
Pa. Super. 510, 513, 554 A.2d 118, 119 (1989). . . . “We decline
to become appellant’s counsel. When issues are not properly
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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.” Sanford, supra, 299 Pa. Super. at
67, 445 A.2d at 150.
Id. at 1017.
Instantly, Father’s Statement of Questions Involved refers to his
Statement of Errors Complained of on Appeal. See Father’s Brief at 10.
Moreover, Father’s Statement is lengthy, and Father does nothing to focus
and/or consolidate the issues where appropriate.
Although Father’s brief may not be in conformity with Pennsylvania Rule
of Appellate Procedure 2116, the defects do not hamper meaningful review of
several issues raised by Father. Both Mother and the trial court responded to
issues raised by Father. As we are able to discern Father’s arguments on
these issues, we decline to dismiss or quash Father’s appeal. Similarly, despite
the voluminous nature of Father’s Statement of Errors Complained of on
Appeal, we likewise decline to find waiver. Tucker v. R.M. Tours, 939 A.2d
343, 346 (Pa. Super. 2007). However, to the extent that Father wished to
raise issues that are not addressed in this memorandum, we find Father has
waived such issues due to the deficiencies in his brief.
We do caution Father’s counsel regarding appellate strategy. Raising so
many issues reminds us of Justice Robert H. Jackson’s warning:
Legal contentions, like the currency, depreciate through
overissue. The mind of an appellate judge is habitually receptive
to the suggestion that a lower court committed an error. But
receptiveness declines as the number of assigned errors
increases. Multiplicity hints at a lack of confidence in any one. Of
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course, I have not forgotten the reluctance with which a lawyer
abandons even the weakest point lest it prove alluring to the same
kind of judge. But experience on the bench convinces me that
multiplying assignments of error will dilute and weaken a good
case and will not save a bad one.
Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,”
at 130 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy Before the United
States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)).
This “much quoted” advice, unfortunately, “often ‘rings hollow’….”
Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (citing
Ruggero J. Aldisert, J. “The Appellate Bar: Professional Competence and
Professional Responsibility–A View From the Jaundiced Eye of the Appellate
Judge,” 11 Cap. U.L. Rev. 445, 458 (1982)). But its importance cannot be
overstated. See, e.g., Jones v. Barnes, 463 U.S. 745, 751-752 (1983)
(“Experienced advocates since time beyond memory emphasized the
importance of winnowing out weaker arguments on appeal and focusing on
one central issue if possible, or at most on a few key issues.”); Howard v.
Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (“[O]ne of the most important
parts of appellate advocacy is the selection of the proper claims to urge on
appeal. Throwing in every conceivable point is distracting to appellate judges,
consumes space that should be devoted to developing the arguments with
some promise, inevitably clutters the brief with issues that have no chance …
and is overall bad appellate advocacy.”); Aldisert, supra at 129 (“When I read
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an appellant’s brief that contains more than six points, a presumption arises
that there is no merit to any of them.”)
Turning to Father’s issues on appeal, we group Father’s issues into two
main categories: (1) a challenge to the appointment and testimony of Dr.
Rosenblum; and (2) a challenge to the award of primary physical custody to
Mother.
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§§ 5321-5340, our standard of review is 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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015).
This Court consistently has held:
[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.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations
omitted).
Father’s issues 1 through 6 all raise claims of error as to Dr. Rosenblum
and his custody evaluations. Father asserts that the trial court erred in
appointing Dr. Rosenblum to conduct a custody evaluation, in ordering Dr.
Rosenblum conduct a second custody evaluation, and in accepting Dr.
Rosenblum’s testimony as an expert witness. See Father’s Brief at 23-35.
Specifically, Father claims the second custody evaluation was ordered based
on the “exaggerated and mischaracterized allegations” Mother raised in her
Petition for Special Relief. Id. at 25-28. He further takes issue with Dr.
Rosenblum’s competence to testify as an expert witness based on his past
history of disciplinary action. See id. at 28-35.
As these issues involve pure questions of law, our standard of review is
de novo, and our scope of review is plenary. See Gilbert v. Synagro Cent.,
LLC, 131 A.3d 1, 10 (Pa. 2015); Harrell v. Pecynski, 11 A.3d 1000, 1003
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(Pa. Super. 2011); In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en
banc) (citations omitted).
First, Father contends the trial court erred in qualifying Dr. Rosenblum
as an expert.
“Whether a witness has been properly qualified to give expert
witness testimony is vested in the discretion of the trial court.”
Kovalev v. Sowell, 839 A.2d 359, 362–363 (Pa. Super. 2003)
(citation omitted). “It is well settled in Pennsylvania that the
standard for qualification of an expert witness is a liberal one.
When determining whether a witness is qualified as an expert the
court is to examine whether the witness has any reasonable
pretension to specialized knowledge on the subject under
investigation.” Id. (citations omitted).
The determination of whether a witness is a qualified expert
involves two inquiries: When a witness is offered as an expert,
the first question the trial court should ask is whether the subject
on which the witness will express an opinion is so distinctly related
to some science, profession, business or occupation as to be
beyond the ken of the average layman.... If the subject is of this
sort, the next question the court should ask is whether the witness
has sufficient skill, knowledge, or experience in that field or calling
as to make it appear that his opinion or inference will probably aid
the trier in his search for truth. Sowell, 839 A.2d at 363 (citations
and quotation marks omitted).
Seels v. Tenet Health Sys. Hahnemann, LLC, 167 A.3d 190, 200–01 (Pa.
Super. 2017). Further, “the weight to be given to such testimony is for the
trier of fact to determine.” Miller v. Brass Rail Tavern, Inc., 664 A.2d 525,
528 (Pa. 1995).
Father does not challenge the court’s conclusion that custody
evaluations are a subject that is appropriate for expert opinion. Instead,
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Father’s argument focuses on Dr. Rosenblum’s qualifications to provide an
opinion that would aid in the search for truth on the issue of custody.
In response to Father’s challenge on appeal, the trial court writes,
Dr. Rosenblum is undoubtedly qualified as an expert in
psychological custody evaluations. As such, Dr. Rosenblum is
qualified to author custody evaluation reports and testify to the
same. Dr. Rosenblum has been a clinical psychologist for forty
(40) years, and is partnered with the Allegheny Forensics
Associates. The program holds a contract with the Allegheny
County Court of Common Pleas Family Division to perform custody
evaluations.
Father contends that because Dr. Rosenblum was disciplined by
the State Board of Psychology he is not qualified to testify as an
expert. Father’s contention is without merit. First, the occasion
on which Dr. Rosenblum was punished by the State Board of
Psychology was based on a custody evaluation he performed
wherein he did not interview both parents. In this case, Dr.
Rosenblum individually interviewed Mother, Father, and the three
(3) children for both the first and second evaluations.
Second, and more importantly, it is within the liberal discretion of
the Court to qualify an expert. The [c]ourt focused on Dr.
Rosenblum’s extensive experience in conducting psychological
custody evaluations. The [c]ourt considered the disciplinary
actions when deciding whether or not to qualify Dr. Rosenblum as
an expert. Similarly, Dr. Rosenblum was undoubtedly qualified to
perform the second evaluation just as he was the first because his
qualifications did not change between the time of the first and
second evaluations.
Trial Court Opinion, 10/17/18, at 4-5 (citations to record omitted).
We can find no error or abuse of discretion in the trial court’s reasoning.
The disciplinary proceedings against Dr. Rosenblum did not alter his
specialized knowledge on the issue of custody. As the trial court held, those
proceedings are relevant only to the weight, not the admissibility, of Dr.
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Rosenblum’s opinions. Accordingly, Father’s challenge to the court’s
qualification of Dr. Rosenblum as an expert witness merits no relief.
Next, Father challenges the trial court’s decision to order a second
custody evaluation. “Pa.R.C.P. 1915.8(a) provides the court discretion as to
whether to order the child or a party to submit to an evaluation by an
appropriate expert.” Jordan v. Jackson, 876 A.2d 443, 455 (Pa. Super.
2005) (citation and internal quotation marks omitted).
The trial court describes its rationale for the second custody evaluation:
In this case, the second psychological evaluation was ordered
following Mother’s October 2, 2017 Petition for Special Relief due
to significant events that the [c]ourt felt potentially changed the
Children’s relationship with the parties. The events alleged in the
Petition include, but are not limited to, Father’s road rage incident
with the Children in the car, Father screaming at [B.L.] in full view
of the other Children, and Father spitting on Mother’s sidewalk and
raising his middle finger when he passes Mother’s house.
In light of these allegations the [c]ourt determined that another
psychological evaluation was appropriate to determine if the
Children’s relationship with Father had materially changed since
the first evaluation was conducted. Just as ordering the first
evaluation was in the [c]ourt’s sound discretion, ordering the
second evaluation was in its sound discretion.
Trial Court Opinion, 10/17/18, at 5-6 (citations to record omitted).
Once again, we can find no error or abuse of discretion in the trial court’s
reasoning. The court, cognizant of its duty to serve the best interests of the
Children, sought an updated opinion after Mother alleged a change in the
relationships between the Children and Father. Father’s second argument
merits no relief.
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In Father’s second broad category of arguments, issues 7 through 35,
Father repeatedly claims that the trial court erred in awarding primary physical
custody to Mother and reducing his periods of physical custody. Father argues
that the custody factors and the Children’s best interests suggest an award of
shared physical custody. See Appellant’s Brief at 35-36.
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. The Act
provides for custody arrangements ranging from sole physical custody in one
adult to equally shared physical custody between parties. See 23 Pa.C.S.A. §
5323(a).
Father argues,
[t]he [c]ourt abused its discretion reducing Father’s periods of
physical custody and in awarding Mother primary physical custody
of the Children as all of the sixteen (16) best interest factors favor
an award of shared physical custody. The custody schedule
established by the Court provides the Children with only four (4)
overnights per month with Father. This schedule is not in the best
interest of the Children as it deprives them of spending significant
time with their Father. It is in the best interest of the Children to
spend an equal amount of time with both of their parents based
on a shared custody schedule.
Id. at 36. Specifically, Father claims that the trial court erred in its analysis
of multiple factors under section 5328(a). See id. at 37-62.
Section 5328(a) sets forth the best interest factors that the trial court
must consider. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2 (Pa. Super. 2011).
All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order. . . .
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The record must be clear on appeal that the trial court considered
all the factors.
Section 5323(d) provides that a trial court shall delineate the
reasons for its decision on the record in open court or in a written
opinion or order. Additionally, section 5323(d) requires the trial
court to set forth its mandatory assessment of the sixteen section
5328(a) custody factors prior to the deadline by which a litigant
must file a notice of appeal.” . . .
In 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 court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (emphasis in original;
citations and internal quotation marks omitted).
The trial court is required to consider all of the Section 5328(a) factors
in entering a custody order. See J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.
Super. 2011). Although the court is required to give “weighted consideration
to those factors which affect the safety of the child” pursuant to section
5328(a), the amount of weight a court gives any one factor is almost entirely
discretionary. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013).
Critically, as we stated in M.J.M.:
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. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa. Super. 2010) (“In reviewing a custody order . . . 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”).
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Id. (emphasis added).
First, Father argues the trial court abused its discretion when it found
that Mother was the more likely party to encourage frequent contact with the
other parent. See 23 Pa.C.S.A. § 5328(a)(1). On this factor, the court made
the following findings of fact:
14. The [c]ourt finds that Mother is more likely than Father to
encourage and permit frequent and continuing contact between
the Children and the other parent. The [c]ourt finds that Father
permits contact between the Children and Mother during his
custody time. The [c]ourt finds, however, that Father does not
encourage the Children to contact Mother.
15. [B.L.] credibly testified that Mother prompts the Children to
call and text Father. [B.L.] further testified that Mother “gives
[the Children] the option of walking over [to Father’s house].”
16. [E.L.] credibly testified that Mother wants the Children to have
a good relationship with Father. [E.L.] also credibly testified that
Mother tells the Children “to be nicer to [Father] and talk to
[Father] more.”
17. [M.L.] credibly testified that he calls and text messages Father
on a daily basis when he is in Mother’s care. [M.L.] credibly
testified that he enjoys calling Father.
18. [B.L.] and [E.L.] credibly testified that they rarely respond to
Father’s phone calls and text messages. [B.L.] credibly testified
that he does not respond to Father [sic] calls and messages
because he does not “want to deal with anyone” and because
Father “turns [their] conversations into discussions about religion
or custody.” [E.L.] testified that she calls Father back
“sometimes” but does not always call him back “at night because
[she is] too tired.”
19. [B.L.] and [E.L.] both credibly testified that Father does not
encourage their relationship with Mother. [M.L.] credibly testified
that he is not sure if Father encourages the Children’s relationship
with Mother because “[Father] never says anything to [him].”
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20. [E.L.] credibly testified that Father does not say anything
positive about Mother and that Father calls Mother “a liar.” [E.L.]
also credibly testified that Father will ask her about “what [she] is
texting to [Mother] and what [Mother] is saying back.”
21. Mother credibly testified that Father allows the Children to visit
her home during his custody time but only to retrieve something
that they forgot. Mother further credibly testified that the Children
are permitted to stay for approximately ten (10) minutes per visit.
Mother credibly testified that the Children “feel pressured to return
[to Father’s home] and they watch the clock and they get text
messages [from Father].”
22. Dr. Neil Rosenblum opined that the Children do not feel
comfortable calling or texting Mother in Father’s presence. Dr.
Rosenblum further opined that the Children seek the privacy of
their bedrooms when they want to speak to Mother during Father’s
custody time[.]
23. The [c]ourt finds that while Father permits the Children to
contact Mother, he does so in a manner that is disapproving, which
causes undo [sic] stress on the Children.
Findings of Fact, 8/13/18, at 3-5. The certified record supports these findings,
and the court’s conclusions based on these findings are reasonable. Father’s
arguments on appeal all amount to challenges to the trial court’s credibility
determinations. As we do not make independent factual determinations on
appeal, Father’s challenge to this factor merits no relief. See C.R.F. v. S.E.F.,
45 A.3d 441, 443 (Pa. Super. 2012).
Next, Father challenges the court’s determination that the Children
expressed a well-reasoned preference for Mother to have physical custody.
See 23 Pa.C.S.A. § 5328(a)(7). Once again, the trial court provided
comprehensive findings of fact on this factor:
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40. The [c]ourt finds that the Children expressed a well-reasoned
preference to spend more time with Mother. The [c]ourt further
finds that the Children are mature and their judgement is sound.
41. [B.L.] (age 15) credibly testified that he does not want to
spend more time with Father. [B.L.] credibly testified that Father
makes him uncomfortable by talking about “problems that Mom
has.” He testified that Father also makes him uncomfortable when
he “gets mad in the moment and says stuff in front of [his]
friends.” [B.L.] credibly testified that he does not like it when
Father asks him how often he prays or when he asks him about
the church he attends with Mother. He credibly testified that he
and Father have “fights” regarding religion. [B.L.] testified that
Mother and Father have different religions. He credibly testified
that the Children like Mother’s church better than Father’s. [B.L.]
credibly testified that Father makes comments about their religion
“being odd”, which is upsetting to him.
42. [M.L.] (age 14) credibly testified that he does not like the
current custody schedule. He further testified that he would like
“more weekend time with [Mother].” [M.L.] credibly testified that
he “has fun with [Father] on the weekends but [the Children] do
more things with [Mother].” [M.L.] credibly testified that he is
more comfortable with Mother because she was “always there for
[him] while [Father] was working.”
43. [E.L.] (age 13) credibly testified that “it would be nice to have
more weekends with [Mother] because of church...” She credibly
testified that she does not have a preference as to the days that
she sees Father. [E.L.] credibly testified that she is “used to going
to [Mother]” with her concerns. She testified that “talking to
[Father] is awkward because [Father] was always gone while
[Mother and Father] were married.”
44. Dr. Rosenblum testified that he conducted the first evaluation
interviews with the [L.] family in June and July of 2017. Dr.
Rosenblum opined that the Children “felt strongly that they did
not have enough weekend time with [Mother].”
45. Dr. Rosenblum opined that the Children were still adjusting to
Mother and Father’s separation. He further opined that the
Children felt that Father was attacking Mother and the Children
because of their religion. He opined that the Children felt that
Father “does not understand or respect their feelings or desires.”
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46. Dr. Rosenblum opined that at the time of the first evaluation,
the Children expressed “legitimate concerns” regarding Father’s
behavior, however, he was “impressed with [Father’s] ability to
adjust to a more hands-on role with [the Children].” He further
testified that it was his “hope that [Father] would listen to [the
Children] more than focus on a shared custody schedule.”
47. At the conclusion of his first evaluation, Dr. Rosenblum opined
that “this is not a 50/50 shared custody case” because “[the
[Children] simply feel more secure with [Mother].” He
recommended within in his first evaluation report dated July 31,
2017, Defendant’s Exhibit N, that Mother exercise primary
physical custody of the Children subject to Father’s periods of
partial physical custody every other Friday night to Monday
morning, and every Thursday night to Friday morning.
48. Dr. Rosenblum testified that only three (3) months had lapsed
after the conclusion of the first evaluation when the parties’ were
ordered to engage in updated psychological evaluations. Within
that three (3)[-]month timeframe, Dr. Rosenblum opined that “a
series of events occurred with [Father], which led to a
deterioration of [Father] and [the Children’s] relationship.” Dr.
Rosenblum testified that the majority of the events were related
to Father’s discussions with the Children regarding his desire to
achieve shared physical custody, Father’s dislike of Mother and
the Children’s religion and Father’s negative comments about
Mother to the Children. He opined that Father’s conduct is “self-
defeating” because “he knows that [the Children] do not want
shared custody and his efforts to force this arrangement creates
a further divide between him and [the Children].”
49. Dr. Rosenblum further opined that Father’s actions “fueled
[the Children’s] concerns that [Father] does not listen or care
about their needs or desires.” Dr. Rosenblum opined that
“[Father] is not a bad guy[, and that in] fact, he is a good guy
that loves [the Children], but [Father] does not understand that
attacking [Mother] is hurting his relationship with [the Children]
and by pushing for shared custody is hurting their relationship.”
50. Dr. Rosenblum noted that the Children are now teenagers and
the need for Father to compromise with the Children is imperative
in order to promote their relationship. Dr. Rosenblum opined that
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it is “most important for [Father] to not force his will onto [the
Children], which will further lead to more deterioration.”
51. Dr. Rosenblum opined at the conclusion of the updated
evaluation that it is in the best interest of the Children for Father
to exercise physical custody every other Friday night to Sunday
night. He further opined that it could be advantageous for Father
to negotiate with the Children regarding their desire to spend an
extra overnight with him on a Thursday or Monday evening. Dr.
Rosenblum recommended that Father allow the Children to opt-
out of the extra overnight and have dinner together with them
instead.
52. Dr. Rosenblum opined that “if 50/50 custody is put in place,
[the Children] will react negatively and resist [Father] further.”
He further opined that “downsizing [Father’s] custody time will not
hurt [Father’s] relationship with [the Children].”
53. Dr. Rosenblum opined in his evaluation and report dated
December 26, 2017, Defendant’s Exhibit O, that “it is most
important that the Children continue in their family therapy with
Tammy Rink, with both Mother and Father alternating taking the
Children to the therapy sessions. Mother and Father should be
able to have occasional individual appointments with Ms. Rink as
well.”
54. Mother credibly testified that the Children and Father are
receiving family counseling with Tammy Rink. The Children
credibly testified that the counseling sessions are not going well
because “nothing changes” and it “has not helped.” [B.L.] credibly
testified that they have not gone to counseling “for about three
months.” Mother credibly testified that on average, the Children
and Father see Ms. Rink “once a month but not every month.” The
[c]ourt finds that the parties are not attending family counseling
enough given the level of tension between Father and the
Children’s relationship.
55. The [c]ourt finds that the Children are not ready to have a
shared physical custody relationship with Father. The [c]ourt
finds that consistent family therapy sessions with Tammy Rink, or
any other trained professional, will likely promote Father’s
relationship with the Children.
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Findings of Fact, 8/13/18, at 7-11. As before, these findings are all well
supported by the certified record. Father first asserts that the trial court placed
too much weight on this factor. As noted in our standard of review, the trial
court has broad discretion in determining which factors are most important in
each individual case. As we cannot conclude the trial court abused its
discretion in this case, Father’s argument merits no relief.
Father also challenges the trial court’s findings that the Children’s
preferences for physical custody with Mother were well-reasoned and mature
in judgment. Father’s arguments once again request that we overturn well-
supported factual determinations. As we cannot do this on appeal, Father’s
arguments merit no relief.
The third factor subject to Father’s attack concerns whether either party
has attempted to turn the Children against the other parent. See 23 Pa.C.S.A.
§ 5328(a)(8). The trial court thoroughly reviewed the evidence on this factor:
56. The [c]ourt finds that both parties have engaged in negative
conduct towards each other in the presence of the Children. The
[c]ourt further finds that neither parties’ conduct was an
intentional attempt to turn the Children against the other parent.
57. Mother credibly testified that she told Father in December of
2016 that she wanted a divorce, but she did not leave the marital
residence until February 7, 2017. Mother and Father both credibly
testified that their separation was difficult and stressful.
58. Father credibly testified that he was blind-sided by Mother’s
decision to leave the marriage. Mother credibly testified that she
was frustrated with Father for refusing to leave the marital
residence. Mother testified that she wanted to remain in the
marital residence with the Children because she was the Children’s
primary caretaker.
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59. Father credibly testified that in January of 2017 Mother asked
him in the presence of the Children to leave the martial [sic]
residence. He further testified that Mother chastised him in front
of the Children when he refused to move out. Father testified that
Mother was trying to create an “us vs. him” situation, meaning the
Children and Mother against Father.
60. Father credibly testified that Mother called the police in
January of 2017 when she was unable to find her purse. He
credibly testified that Sergeant John Burlett of the Edgeworth
Police Department responded to the call. Father credibly testified
that the Children were present when the police arrived. Sergeant
Burlett testified that Mother wanted the police to be present while
she checked Father’s vehicle for her purse. Sergeant Burlett
testified that Father permitted him to search his truck. Sergeant
Burlett further testified that Mother’s purse was not in Father’s
vehicle and that Mother called the police station back later that
evening to let him know that she found her purse. Mother credibly
testified that she was under a lot of stress and she forgot that she
had hidden her purse in the house.
61. Mother credibly testified that in January of 2017, Father
damaged pictures of her located within the martial [sic] residence.
Mother presented a collection of photos, Defendant’s Exhibit A,
which show Mother’s face and eyes scratched out in a number of
family photos. Mother credibly testified that after the photos were
damaged, they were put back into their frame and redisplayed
where they were originally kept at the martial [sic] residence.
Mother credibly testified that the Children were able to see the
damaged photographs.
62. The [c]ourt finds that the Children were exposed to a number
of events during which the parties treated each other poorly. The
[c]ourt finds that the majority of the events occurred during the
parties’ initial period of separation, which was a stressful time for
the entire family. The [c]ourt further finds that the Children’s
exposure to certain events was not an intentional act by either
party to alienate the Children from the other parent.
Findings of Fact, 8/13/18, at 11-13. These findings are all well-supported by
the certified record. Father’s challenges to this factor all amount to challenges
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to the trial court’s credibility and factual findings. For example, Father argues
that the court erred in finding that Mother’s conduct was not an intentional
attempt to alienate the Children from Father. As we can find no abuse of the
court’s discretion, Father’s arguments on this factor merit no relief.
Father next contends the trial court erred in concluding that Mother is
more capable of meeting the Children’s emotional needs. See 23 Pa.C.S.A. §
5328(a)(9). On this factor, the court found:
63. The [c]ourt finds that both parties are able to maintain a
loving, stable consistent and nurturing relationship with the
Children. The [c]ourt further finds that Mother is more likely than
Father to adequately provide for the Children’s emotional needs.
64. As discussed supra under Factor 7, the Children credibly
testified that they feel more comfortable with Mother than they do
with Father. Dr. Rosenblum opined that the Children feel that
“[Father] doesn’t listen or care about their needs or desires.”
65. Father credibly testified that he does not take responsibility
for the deterioration of his relationship with the Children. Father
testified that it is Mother’s fault that the Children do not respond
to his communications. Dr. Rosenblum opined that “if [Father]
continues to feel that he is doing, nothing wrong, things probably
will not improve.”
66. The [c]ourt finds that Father is unable to meet the Children’s
emotional needs at this time. The [c]ourt further finds that
consistent family therapy with the Children will likely assist Father
in achieving the goal of meeting their emotional needs.
Findings of Fact, 8/13/18, at 13. These findings all find substantial support in
the certified record. Father argues the court erred in placing any emphasis on
Mother’s history of being the primary caretaker of the children.
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While the primary caretaker doctrine is no longer viable, a court may
still consider a parent’s role as primary caretaker in its consideration of the
custody factors.
We hasten to add that this conclusion does not mean that a trial
court cannot consider a parent’s role as the primary caretaker
when engaging in the statutorily-guided inquiry. As discussed
above, a trial court will necessarily consider a parent’s status as a
primary caretaker implicitly as it considers the section 5328(a)
factors, and to the extent the trial court finds it necessary to
explicitly consider one parent’s role as the primary caretaker, it is
free to do so under subsection (a)(16).
M.J.M., 63 A.3d at 339. Here, Mother’s role as the Children’s primary
caretaker was certainly relevant to the issue of which parent was better
equipped to address the Children’s emotional needs.
Father also challenges the court’s conclusion that he has deficiencies in
his ability to address the Children’s emotional needs. Once again, Father asks
us to engage in second-guessing the trial court’s factual determinations. As
we do not make independent factual determinations, Father’s arguments merit
no relief.
In his next argument, Father challenges the trial court’s conclusion that
Mother is more likely to attend to developmental and medical needs of the
Children. See 23 Pa.C.S.A. § 5328(a)(10). On this issue, the trial court found:
67. The [c]ourt finds that both parties are likely to attend to the
Children’s daily physical, developmental and educational needs.
…
71. Mother credibly testified that the Children have a number of
special medical needs. She credibly testified that all three (3)
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children routinely visit a pediatrician, dentist and orthodontist.
Mother credibly testified that “[M.L.] and [E.L.] see an eye
doctor”, “[B.L.] sees a heart doctor once a year” and “[M.L.] sees
an endocrinologist once a year.” She credibly testified that “[B.L.]
has Lyme Disease... [and] he is prescribed antibiotics when
symptoms occur.”
72. Mother credibly testified that she schedules all of the
Children’s medical appointments during her custody time if
possible because Father “says not to make appointments on his
time.” Mother credibly testified that in May of 2017 a wire in the
back of [B.L.]’s braces popped out, which caused him discomfort
in his mouth. She testified that she made an emergency
orthodontist appointment for [B.L.] during Father’s custody time,
and that Father refused to take [B.L.] to his appointment. Mother
further testified that Father also refused to allow her to take him
to the scheduled appointment. Mother credibly testified that she
had to reschedule [B.L.]’s appointment to a later date during her
custody time.
73. The [c]ourt finds that Father struggles to meet the Children’s
special and emotional needs. The [c]ourt finds that the attached
custody Order of Court will ensure that the all of the Children’s
needs are being met.
Findings of Fact, 8/13/18, at 14-15. The court’s findings are all supported by
the record. Father argues that the trial court misconstrued the nature of his
request to Mother that she not schedule medical appointments during his
custodial periods. He contends the court ignored his testimony that he made
this request based on Mother’s failure to share the contact information for the
medical service providers. Father claims he merely desired to be more
involved in scheduling the appointments during his custodial periods.
However, this argument at its core is simply another request for this
Court to make independent factual findings. The trial court explicitly found
Mother’s testimony on this issue credible. If we were to grant Father’s request
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and credit his testimony, we would be overruling the trial court’s explicit
credibility findings with our own, independent factual findings. Father’s
arguments on this factor merit no relief.
Next, Father challenges the trial court’s conclusion that Mother has a
greater capacity and willingness to co-parent the Children. See 23 Pa.C.S.A.
§ 5328(a)(13). As in all of these issues, the court provided extensive findings
of fact:
73. The [c]ourt finds that the level of conflict between the parties
is high. The [c]ourt finds that Mother has shown a willingness and
the ability to cooperate with Father. The [c]ourt finds that Father
has the ability to cooperate with Mother, but that he rarely shows
a willingness to do so.
74. Mother credibly testified that she “tries to speak to [Father]
about custody issues...but [Father] refuses to acknowledge
[her].” She testified that the parties began co-parenting
counseling sessions with Dr. Bob Wilson in May of 2018. Mother
credibly testified that Father “will not speak to [her] directly at co-
parenting counseling sessions either...and [Father] ignores [her]
questions.”
75. Father credibly testified that the parties have not had a
detailed conservation [sic] since they separated. He testified that
the parties only “exchange pleasantries” when they are face-to-
face. Father testified that Mother has tried to arrange a “sit-down”
conversation, but that Father has not agreed to meet her yet.
Father credibly testified that “in time [he] would like to because it
is good for the kids.”
76. Father credibly testified that Mother has offered him additional
custodial time and she invited him to join her and the Children to
see a movie. He testified that he has declined Mother’s offers.
77. The [c]ourt finds that Father harbors resentment towards
Mother, which impedes his ability to co-parent. The [c]ourt finds
that Mother has made several attempts to resolve the on-going
hostility, but that Father has declined her offers to discuss the
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matter. The [c]ourt finds that consistent co-parenting counseling
sessions will likely improve the parties’ relationship.
Findings of Fact, 8/13/18, at 16-17. The certified record provides ample
support for these findings.
Father argues the trial court mischaracterized the nature of the disputes
between Mother and Father. Father complains that the court accepted
Mother’s version of the disputes while ignoring his version. Again, Father’s
argument boils down to a request that we overrule the trial court’s credibility
determinations. As we will not engage in independent fact-finding, Father’s
arguments on this factor merit no relief.
Father’s final three issues, while styled as challenges to the trial court’s
consideration of custody factors, are actually challenges to evidentiary rulings
made by the court. See Appellant’s Brief at 62 (arguing the court erred in
sustaining relevancy objections raised by Mother). However, the two
paragraphs of argument that support these three issues contain no citations
to authority. Nor do they develop any argument to support Father’s contention
that the trial court erred in sustaining Mother’s objections.
“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority.” Eichman v. McKeon, 824 A.2d 305, 319 (Pa. Super.
2003). Furthermore, “[w]hen 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 &
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Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006) (citations
omitted). As a result of the deficiencies in his brief, Father has waived these
issues.
In summary, we interpret the second group of issues raised by Father
to be, at their core, a challenge to the trial court’s findings of fact and
determinations regarding credibility and weight of the evidence. Father, in
essence, questions the trial court’s conclusions and assessments and seeks
this court to re-find facts, re-weigh evidence, and/or re-assess credibility to
his view of the evidence. This we cannot do.
We will not disturb the trial court’s findings of fact and credibility
determinations absent an abuse of discretion. See C.R.F., 45 A.3d at 443;
see also E.R., 129 A.3d at 527. As we stated in King v. King, 889 A.2d 630,
632 (Pa. Super. 2005), “It is not this Court’s function to determine whether
the trial court reached the ‘right’ decision; rather, we must consider whether,
‘based on the evidence presented, given [sic] due deference to the trial court’s
weight and credibility determinations,’ the trial court erred or abused its
discretion. . . .” (quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super.
2005)). After a thorough review of the record, we find no abuse of discretion.
In the case sub judice, the trial court reasonably analyzed and
addressed each factor under Section 5328(a). See Findings of Fact, 8/15/18,
at 3-17. After careful review of the record, we determine that the trial court’s
findings and determinations regarding the custody factors set forth in Section
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5328(a) are supported by competent evidence in the record, and we will not
disturb them. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527.
As such, Father’s claims are without merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
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