M.L. v. S.G. ( 2015 )

J-A03014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.L. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
S.G.
Appellee No. 1487 MDA 2014
Appeal from the Order Entered August 6, 2014
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2013-10899
BEFORE: MUNDY, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 21, 2015
Appellant, M.L. (Father), appeals from the August 6, 2014 custody
order granting Appellee, S.G. (Mother), primary physical custody, Father
partial physical custody, and the parties shared legal custody with respect to
their son, L.G., born out of wedlock in January of 2013. After careful review,
we affirm.
The trial court summarized the relevant facts and procedural history as
follows.
[On September 13, 2013, Father] filed a Complaint
in Custody seeking primary physical and shared legal
custody of L.G. [ ]. [Mother] filed a Counterclaim
seeking primary physical custody of the minor child.
Father and Mother are the biological parents of the
aforesaid child.
From L.G.’s date of birth through October 15,
2013[,] there was no custody order in effect. By
way of Father’s Special Relief Petition [filed on
J-A03014-15
September 26, 2013], a hearing was held on October
15, 2013. As a result of this hearing, th[e trial
c]ourt entered … the first custody order in this
matter which called for shared physical custody with
a 4/3[,] 3/4 alternating schedule of physical custody.
The duration of this court order was only to last until
the Custody Conference of November 5, 2013.
An agreement on the issue of custody could not be
reached via Conciliatory Custody Conference held on
November 5, 2013 resulting in this matter being
listed for trial. The parties did enter into an
agreement concerning holiday scheduling for
Thanksgiving and Christmas 2013 and Easter 2014
with the assistance of Dr. Lewis, Ph[.]D, the Custody
Evaluator, appointed by the [trial c]ourt with no
objection by either party….
The custody trial commenced … on March 4, 2014[,]
continuing with testimony and evidence being
received over eleven days spanning1 March and April
until concluding on May 19, 2014….
_________________________________________
1
Testimony and evidence was received by th[e trial
c]ourt on March 4, 5, 12, 13, 18, and 26; April 3, 9,
and 19; May 7 and 19, 2014.
Trial Court Opinion, 8/6/14, at 1-2 (footnote in original).
By order dated August 6, 2014, the trial court granted the parties
shared legal custody, Mother primary physical custody, and Father partial
physical custody on alternating weekends and every Wednesday from 2:00
p.m. until 7:00 p.m. On August 29, 2014, Father timely filed a notice of
appeal and a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i). On September 17, 2014, the trial court issued
its Rule 1925(a) opinion discussing Father’s issues and adopting its August
6, 2014 opinion.
-2-
J-A03014-15
On appeal, Father presents the following issues for our review.
1. Did the trial court err as a matter of law and/or
[sic] an abuse of discretion in failing to hold a
hearing on the Frye[1] motion or deciding the Frye
motion before adopting the expert’s report and
recommendation and rendering its decision[?]
2. Did the trial court err as a matter of law and/or
[sic] abuse of discretion by failing to consider the
Frye motion and denying the opportunity to have an
expert testify in support of the Frye motion[?]
3. Did the trial court err as a matter of law and/or
[sic] abuse of discretion by denying an opportunity
to have an expert testify[?]
4. Did the trial court err as a matter of law and/or
[sic] an abuse of discretion by failing to do its own
analysis and in its wholesale adopting Dr. Lewis’s
opinion as its own opinion[?]
5. Did the trial court err as a matter of law and/or
[sic] an abuse of discretion in its application of the
enumerated factors under [23 Pa.C.S.] § 5328 by:
a. In not consistently applying the same facts
to different factors;
b. Failing to apply the evidence and testimony;
c. Failing to apply current case law.
6. Did the trial court err as a matter of law and/or
[sic] an abuse of discretion by accepting Dr. Lewis’s
position on “attached theory,” factor 10, when Dr.
Lewis testified that there is no attachment problem
and the parties stipulated that there was no
attachment issue[?]
____________________________________________
1
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
-3-
J-A03014-15
Father’s Brief at i-ii.
The scope and standard of review in custody matters is as follows.
[T]he appellate court is not bound by the
deductions or inferences made by the trial
court from its findings of fact, nor must the
reviewing court accept a finding that has no
competent evidence to support it…. However,
this broad scope of review does not vest in the
reviewing court the duty or the privilege of
making its own independent determination….
Thus, an appellate court is empowered to
determine whether the trial court’s
incontrovertible factual findings support its
factual conclusions, but it may not interfere
with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 775 A.2d
835, 838 (Pa. Super. 2001)). Moreover,
[O]n issues of credibility and weight of
the evidence, we defer to the findings of the
trial [court] who has had the opportunity to
observe the proceedings and demeanor of the
witnesses.
The parties cannot dictate the amount of
weight the trial court places on evidence.
Rather, the paramount concern of the trial
court is the best interest of the child.
Appellate interference is unwarranted if the
trial court’s consideration of the best interest
of the child was careful and thorough, and we
are unable to find any abuse of discretion.
R.M.G., Jr., supra at 1237 (internal citations
omitted). The test is whether the evidence of record
supports the trial court’s conclusions. Ketterer v.
Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).
-4-
J-A03014-15
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations
omitted).
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902
A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,
677 (Pa. Super. 2004).
Relevant to this custody case are the factors set forth in Section
5328(a) of the Child Custody Act (Act),2 which 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
23 Pa.C.S.A. §§ 5321-5340.
-5-
J-A03014-15
(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.
(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
-6-
J-A03014-15
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(a).3
This Court has stated that, “[a]ll 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 in original).
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.” 23
Pa.C.S.A. § 5323(d). Additionally, “section 5323(d)
requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must
file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
(Pa. 2013)….
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.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.
____________________________________________
3
The Act was amended, effective January 1, 2014, to include the additional
factor at Section 5328(a)(2.1).
-7-
J-A03014-15
2013), appeal denied, 68 A.3d 909 (Pa. 2013). A
court’s explanation of reasons for its decision, which
adequately addresses the relevant factors, complies
with Section 5323(d). Id.
A.V., supra at 822-823. In this case, the trial court addressed all of the
Section 5328(a) custody factors in its opinion that accompanied the subject
order. See Trial Court Opinion, 8/6/14, at 3-14. Therefore, we may now
turn to Father’s issues raised on appeal.
Upon review of the record, we conclude that Father’s issues on appeal
are waived for lack of a complete record. Specifically, as set forth above,
the protracted custody trial lasted eleven days, beginning on March 4, 2014,
and concluding on May 19, 2014. The certified record before this Court
includes transcripts from the trial on March 4, 5, and 26, 2014, but
transcripts from the additional eight days of the trial are not a part of the
record. Further, the trial exhibits are not a part of the certified record. This
Court’s prothonotary contacted the trial court’s prothonotary in an attempt
to learn the whereabouts of the remaining trial transcripts. As part of this
Court’s inquiry, we spoke to the supervisor of the prothonotary/clerk of
courts. Our search proved unavailing, as the trial court’s prothonotary did
not have the transcripts.4
____________________________________________
4
This Court made three separate inquiries of the trial court’s prothonotary
regarding the missing transcripts. We advised the prothonotary that Father
filed a reproduced record that included transcripts for the proceedings on
March 12 and 18, 2014, and portions of the transcripts for the proceedings
(Footnote Continued Next Page)
-8-
J-A03014-15
“It is the obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents necessary to
allow a complete and judicious assessment of the issues raised on appeal.”
Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996) (citation
omitted); accord Kessler v. Broder, 851 A.2d 944, 950 (Pa. Super. 2004),
appeal denied, 868 A.2d 1201 (Pa. 2005). It is the appellant’s responsibility
to ensure that the necessary transcripts are included in the record. “It is not
for an appellate court to scour the dockets of the various prothonotaries to
confirm or deny allegations of any party to an appeal.” Fiore v. Oakwood
Plaza Shopping Ctr., Inc., 585 A.2d 1012, 1019 (Pa. Super. 1991);
accord Preston, supra at 7-8. Where an appellant fails to fulfill his
obligation, “the appellate court may take such action as it deems
appropriate, which may include dismissal of the appeal.” Pa.R.A.P. 1911(d).
_______________________
(Footnote Continued)
on April 9, 2014, May 7 and 19, 2014, none of which are included in the
certified record. In addition, Mother filed a supplemental reproduced record
that included transcripts for the proceedings on April 3 and 9, 2014, and May
7, 2014, which also are not a part of the certified record. Nonetheless, the
prothonotary advised this Court that Father did not request or pay for the
trial transcripts. Upon review, there is no request for transcripts by Father
in the certified record. Notably, “if a document is not in the certified record,
the Superior Court may not consider it.” Commonwealth v. Preston, 904
A.2d 1, 7 (Pa. Super. 2006) (en banc), appeal denied, 916 A.2d 637 (Pa.
2007). Pennsylvania Rule of Appellate Procedure 1921 provides that the
certified record consists of the “original papers and exhibits filed in the lower
court, paper copies of legal papers filed with the Prothonotary by means of
electronic filing, the transcript of proceedings, if any, and a certified copy of
the docket entries prepared by the clerk of the lower court.” Pa.R.A.P. 1921.
-9-
J-A03014-15
In this case, without transcripts from the entire custody trial and the
exhibits made a part of the certified record, we are unable to conduct a
proper review of the issues raised in this appeal. Therefore, we must
conclude that the issues are waived on this basis. See generally
Commonwealth v. O’Black, 897 A.2d 1234, 1238 (Pa. Super. 2006).5
Accordingly, we affirm the trial court’s August 6, 2014 custody order.
Order affirmed.
Judge Jenkins joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
____________________________________________
5
We note “[s]ince the Rules of Appellate Procedure apply to criminal and
civil cases alike, the principles enunciated in criminal cases construing those
rules are equally applicable in civil cases.” Lineberger v. Wyeth, 894 A.2d
141, 148 n.4 (Pa. Super. 2006), citing Kanter v. Epstein, 866 A.2d 394,
400 n.6 (Pa. Super. 2004), appeal denied, 880 A.2d 1239 (Pa. 2005), cert.
denied, Spector Gadon & Rosen, P.C. v. Kanter, 546 U.S. 1092 (2006).
- 10 -