N.F. n/k/a N.H. v. B.F ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.F. N/K/A N.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
B.F. :
:
Appellee : No. 855 MDA 2018
Appeal from the Order Entered May 16, 2018
in the Court of Common Pleas of Huntingdon County
Civil Division at No(s): 2013-00148
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 30, 2018
N.F. n/k/a N.H. (Mother) appeals from the order entered May 16, 2018,
in the Court of Common Pleas of Huntingdon County, which awarded primary
physical custody of her sons, G.F., born in June 2011, and C.J.F., born in July
2012 (collectively, Children) to their father, B.F. (Father).1 We affirm.
We summarize the relevant facts and procedural history of this case as
follows. Mother and Father are former spouses who married in August 2008.
Mother filed a complaint in divorce in January 2013, which included a count
requesting custody of Children. The parties agreed to a memorandum of
understanding, entered as an order of court on April 2, 2013, pursuant to
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* Retired Senior Judge assigned to the Superior Court.
1C.J.F. is not Father’s biological son. Although C.J.F. was born during Mother’s
marriage to Father, and is therefore Father’s child legally, the parties agree
that he is the biological son of J.M., with whom Mother had an extramarital
affair.
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which Father received partial physical custody of Children each weekend. The
memorandum provided that Father would have custody from 6:00 p.m. Friday
until 5:30 p.m. Monday, except for the second weekend of each month, during
which Father would have custody from 5:00 p.m. Sunday until 5:30 p.m.
Monday.2 The order did not address legal custody, but Father and Mother
shared legal custody pursuant to a series of interim court orders entered prior
to the memorandum of understanding. The trial court entered a divorce
decree in October 2015.
On March 22, 2017, Mother filed a petition to modify custody. The trial
court ordered the parties to mediation, where they entered into an additional
memorandum of understanding making slight changes to the existing custody
arrangement. The court entered the memorandum as an order of court on
June 2, 2017.
Relevant to this appeal, Mother filed a second petition for modification
of custody on March 2, 2018. Therein, she averred that C.J.F., who was five
years old at the time, had disclosed being the victim of sexual abuse by his
paternal cousin, C.M.F., who was twelve years old. She averred that
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2The order provided that the parties would share physical custody equally if
Father was laid off or his work schedule changed such that he worked daylight
hours. In that case, Father would have custody from 5:00 p.m. every other
Sunday until 5:00 p.m. the following Wednesday. Immediately after that
Wednesday, Father would have custody from 5:00 p.m. Friday until 5:00 p.m.
Sunday. By the time of the hearing in this matter, the parties were operating
on a shared physical custody schedule.
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Children’s paternal grandparents babysat them while Father was at work, and
that the abuse occurred while Children were in the paternal grandparents’
care. She requested that Father have custody only when he is not working
and able to care for Children himself.3
The trial court conducted a hearing on Mother’s petition on May 1, 2018.
The court first heard the testimony of Mother. Mother focused her testimony
on the aftermath of C.J.F.’s sexual abuse allegations. She criticized Father’s
response to the allegations, saying that he and his family do not believe C.J.F.
N.T., 5/1/2018, at 16. She admitted that Children and Youth Services (CYS)
deemed the allegations unfounded after an investigation but emphasized that
an investigation by the State Police remains ongoing. Id. at 37.
Concerning her own response to C.J.F.’s allegations, Mother described
an incident that took place following Children’s baseball game the weekend
prior to the hearing. The game occurred during Father’s period of custody and
Father’s brothers, Mi.F., who is C.M.F.’s father, and Ma.F., were present. After
the game, as the Children were playing in a nearby playground, Mother asked
Father to tell Mi.F. to leave. Id. at 43. This sparked an argument during
which Mother began yelling while Father loaded Children into his car. Id. at
44. Mother then followed Father’s car for an unspecified distance and called
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3 Mother also filed an emergency petition for special relief requesting that
Children have no contact with their paternal grandparents pending an
investigation of C.J.F.’s allegations. The trial court scheduled a hearing on
Mother’s petition but the record does not reveal the existence of an order
granting or denying her requested relief.
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the State Police, sending them to Father’s home to ensure that Children were
safe. Id. at 45.
Mother further testified that she created a post on Facebook warning
that “people needed to keep their kid away from” C.M.F. Id. at 39. Mother
claimed that her post was a “general comment,” and did not provide
identifying information for C.M.F. Id. at 43. However, when confronted with
the text of the post on cross-examination, she admitted that she described
C.M.F. as an “evil child” and did in fact provide his bus number, grade, and
school. Id. at 52-53. Father’s counsel also questioned Mother about a
voicemail that C.J.F. left Father using Mother’s phone, during which he stated
that he did not want to visit Father anymore.4 Mother claimed that Children
know the password to her phone and that they have access to it “all the time.”
Id. at 69-70. She denied that she was present during the phone call or knew
that it had taken place. Id. at 94-95. However, she insisted that C.J.F.
demands frequently that he no longer visit Father. Id. at 95.
The trial court then heard the testimony of Father. Father’s testimony
focused on his belief that Mother filed her petition for modification of custody
out of spite rather than concern for Children’s safety. Father testified that he
cooperated with Mother to address C.J.F.’s allegations by alerting CYS and
Mi.F. Id. at 105-06. He also agreed that the Children should stay away from
C.M.F. until the allegations were resolved. Id. at 108. However, he
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4The voicemail was not included in the certified record but its contents are
undisputed.
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complained that Mother began using the allegations as an excuse to request
that Children not spend time with him, their paternal grandparents, or C.M.F.’s
parents. Id.
The trial court continued the custody hearing on May 15, 2018, during
which it heard further testimony from Father. Father expressed concern that
Mother may have caused C.J.F. to fabricate the allegations of sexual abuse.
Id. at 22-23. He explained that Mother made statements to him indicating
that she intended to take Children away and move in with her boyfriend in
Maryland. Id. at 28-30.
Next, Mother presented the testimony of her boyfriend, M.S., and the
Children’s maternal step-grandfather, R.M., while Father presented testimony
from Mi.F. and Children’s paternal grandfather, F.F. Of significance here, Mi.F.
provided further testimony concerning the incident at the playground following
the Children’s baseball game. Mi.F. recalled that Mother threatened C.M.F.
during the incident, stating that C.M.F. “is gonna get what is coming to him,”
and “that it’s going to be on the news.” Id. at 80.
Finally, Mother testified on rebuttal. During cross-examination, Father’s
counsel asked Mother whether she made the statements described by Mi.F.,
that C.M.F. would “get what is coming to him” and that it would be on the
news. Id. at 110. Mother denied that she made the statements. Id. Father’s
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counsel then confronted Mother with a video of the incident, recorded by Ma.F.
on his phone, proving that she said what Mi.F. described.5 Id. at 110-11.
After hearing the testimony, the trial court announced that it would
award shared legal custody to both parties and award primary physical
custody to Father. The court awarded partial physical custody to Mother each
Wednesday from 4:00 p.m. until 8:00 p.m. and every other weekend from
4:00 p.m. Friday until 8:00 p.m. Sunday. The court entered an order
memorializing this decision on May 16, 2018. Mother timely filed a notice of
appeal on May 23, 2018, along with a concise statement of errors complained
of on appeal. The court entered a supplemental order including a holiday
schedule on May 29, 2018, and filed an opinion pursuant to Pa.R.A.P. 1925(a)
on June 25, 2018.
Mother now raises the following claims for our review.
ISSUE I. Whether or not [the trial c]ourt erred in finding that the
best interest of [C]hildren would best be served by granting
primary custody to Father?
ISSUE II. Whether or not [the trial c]ourt erred by allowing
testimony and the playing of a video and audio of [Mother] despite
the fact that there was no testimony that said the video and audio
was taped with consent of [Mother]?
ISSUE III. Whether or not [the trial c]ourt erred by making a
finding after reviewing the file from [CYS] that this abuse did not
occur?
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5 Mother’s counsel objected to the playing of this video as being a violation of
the Wiretap Act, 18 Pa.C.S. §§ 5701-5782. N.T., 5/15/2018, at 111. That
objection was overruled.
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ISSUE IV. Whether or not [the trial c]ourt erred by allowing
questions to be asked about text messages that [Mother] denied
ever making?
Mother’s Brief at 4 (suggested answers omitted).
We consider Mother’s claims mindful of our well-settled standard of
review.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted). The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S. § 5328(a).
(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.
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(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)
(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
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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. § 5328(a).
Here, in its analysis of these factors, the trial court concluded that
subsections 5328(a)(1), (2), (4), (8), (9), (10), and (13) weighed in favor of
Father, subsection 5328(a)(6) weighed in favor of Mother, and subsections
5328(a)(3), (5), (7), (11), (12), (14), and (15) were neutral. N.T.,
5/15/2018, at 113-17. With respect to subsection 5328(a)(16), the court
chastised Mother for her lack of candor and ordered that a transcript of the
hearing be sent to the District Attorney’s office due to her possible perjury.
Id. at 112, 117. The court expressed that it could not determine whether
C.M.F. had sexually abused C.J.F., or whether Mother had caused C.J.F. to
fabricate the allegations. Id. at 117. However, it concluded that Mother was
attempting to mentally condition the Children and turn them against Father.
Id. at 113, 115. The court emphasized C.J.F.’s phone call to Father, stating,
“[t]he fact that [Mother] had a five-year-old call [Father] and tell [Father] that
[C.J.F.] did not want to go visit [Father] is outrageous. And I firmly believe,
based on my judge of credibility, that [Mother] had [C.J.F.] do that.” Id. at
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115. It also expressed concern that Mother’s life was unstable and that she
was struggling to regulate her emotions. Id. at 114, 116.
On appeal, Mother’s first claim is that the trial court erred by concluding
that it would be in the Children’s best interests to award primary physical
custody to Father. Mother argues that the court was biased against her and
challenges its factual findings with respect to subsections 5328(a)(1), (2), (4),
(8), (9), (10), (13), and (14). Mother’s Brief at 8, 12-20. Additionally, she
argues that the court’s findings lacked sufficient detail, such that it failed to
consider all of the factors and delineate the reasons for its decision. Id. at
18-23.
After careful review, it is clear that the record supports the trial court’s
findings. There was no evidence presented during the hearing that Father
allowed the Children to have any contact with C.M.F. after becoming aware of
abuse allegations. Despite this, Mother engaged in unreasonable and spiteful
behavior, which disrupted Father’s custody of the Children and targeted his
family. During the incident at the playground, Mother instigated an argument,
followed Father’s car, and then called the State Police simply because Mi.F.
was present. Mother also identified C.M.F. and attacked him by name on
Facebook. Mother’s motives in taking these actions appear to have been less
than sincere, as demonstrated by C.J.F.’s phone call to Father to say that he
no longer wants to visit him. This Court’s review of the record confirms the
trial court’s conclusions. Mother appears to have been dishonest with the trial
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court at least twice, and it was well within the court’s discretion to disregard
much if not all of her testimony. See V.B., 55 A.3d at 1197.
While Mother contends that the trial court failed to conduct an adequate
analysis of the subsection 5328(a) factors, we disagree. Our review reveals
that the court discussed all of the factors and explained its reasoning as to
each in a clear and concise manner.6 As this Court has stated, trial courts are
not obligated to discuss the subsection 5328(a) factors in any specific amount
of detail. Rather, “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. 2013). Mother’s first claim
merits no relief.
In her second claim, Mother argues that the trial court erred by allowing
Father’s counsel to play, and question her about, the video of the incident at
the playground following Children’s baseball game. Mother contends that the
court erred because there was no testimony that Mother consented to the
videotaping, making it a violation of Pennsylvania’s Wiretap Act, 18 Pa.C.S.
§§ 5701-5782. Mother’s Brief at 8-9, 24-26. She asserts that the tape was
inadmissible because the Wiretap Act prohibits the intentional use or
disclosure of oral communications intercepted in violation of its provisions.
Id. at 25-26 (citing 18 Pa.C.S. § 5703(2)).
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6The trial court did not include a separate analysis of subsection 5328(a)(2.1),
but it is clear that the court considered the parties’ involvement with CYS.
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Mother’s challenge requires us to interpret the Act’s statutory language.
Thus, our standard of review is de novo and our scope of review is plenary.
Bayview Loan Servicing, LLC v. Lindsay, 185 A.3d 307, 311 (Pa. Super.
2018). When this Court interprets a statute, we do so mindful of the following
principles.
[O]ur objective is to ascertain and effectuate the intention of the
General Assembly[,] and that [e]very statute shall be construed,
if possible, to give effect to all of its provisions. This Court may
not ignore the language of a statute, nor may we deem any
language to be superfluous. Governing presumptions include that
the General Assembly intended the entire statute at issue to be
effective and certain, and that the General Assembly did not
intend an absurd result.
Id. at 312 (citations and quotation marks omitted).
In addition, to the extent this claim implicates the trial court’s discretion
in allowing the admission of evidence, our standard of review is as follows.
When we review a trial court ruling on admission of evidence, we
must acknowledge that decisions on admissibility are within the
sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In addition,
for a ruling on evidence to constitute reversible error, it must have
been harmful or prejudicial to the complaining party.
An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.
Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (quoting Stumpf v.
Nye, 950 A.2d 1032, 1035–36 (Pa. Super. 2008), appeal denied, 962 A.2d
1198 (Pa. 2008)).
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The Wiretap Act provides as follows, in relevant part.
Except as otherwise provided in this chapter, a person is guilty of
a felony of the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to
intercept any wire, electronic or oral communication;
(2) intentionally discloses or endeavors to disclose to
any other person the contents of any wire, electronic
or oral communication, or evidence derived
therefrom, knowing or having reason to know that the
information was obtained through the interception of
a wire, electronic or oral communication; or
(3) intentionally uses or endeavors to use the
contents of any wire, electronic or oral
communication, or evidence derived therefrom,
knowing or having reason to know, that the
information was obtained through the interception of
a wire, electronic or oral communication.
18 Pa.C.S. § 5703.
As Mother contends, the Wiretap Act makes it a criminal offense for a
person to disclose or use intentionally the contents of an oral communication
when he or she knows or has reason to know the information was obtained
through the interception of that communication. See id. In addition, with
limited exception, the Wiretap Act provides that “no person shall disclose the
contents of any wire, electronic or oral communication, or evidence derived
therefrom, in any proceeding in any court, board or agency of this
Commonwealth.” 18 Pa.C.S. § 5721.1(a)(1). The Wiretap Act permits
interception of oral communications “where all parties to the communication
have given prior consent to such interception.” 18 Pa.C.S. § 5704(4).
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Further, of particular significance here, the Wiretap Act defines “oral
communication” as “[a]ny oral communication uttered by a person possessing
an expectation that such communication is not subject to interception under
circumstances justifying such expectation.” 18 Pa.C.S. § 5702.
In the instant matter, we observe that there is at least some testimony
suggesting that Mother consented to the videotaping of the incident at the
playground. Mother testified that she noticed M.F.2 begin to videotape her as
the events unfolded. N.T., 5/1/2018, at 44 (“As [Father] loaded the boys into
the car …. His oldest [brother] started recording me on his phone…. I said,
‘You’re not helping him. I don’t want this for my kids.’”). However, she
continued to escalate the incident and there is no indication in the record that
she asked M.F.2 to stop.
Even if Mother did not consent to the videotaping, the trial court still did
not commit legal error by allowing Father’s counsel to play the tape and
question Mother about its contents. As we observed supra, the Wiretap Act
applies to oral communications made when the speaker has “an expectation
that such communication is not subject to interception under circumstances
justifying such expectation.” 18 Pa.C.S. § 5702; see also Commonwealth
v. Dewar, 674 A.2d 714, 718 (Pa. Super. 1996) (“[T]he Act requires that the
person uttering the words [has] a justifiable expectation that such words are
not intercepted, using similar principles employed to determine whether the
utterer had an expectation of privacy.”). Under the circumstances present
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here, it is clear that Mother had no justifiable expectation that her statements
were not subject to interception. Mother made her statements in or near a
public playground and parking lot, with at least five other people, including
Children, Father, and Father’s brothers, present and listening to her. Nothing
about this situation would suggest that Mother intended her statements to be
private or that M.F.2 violated the Wiretap Act by recording them. No relief is
due.7
Next, Mother argues that the trial court erred by making a finding that
C.M.F. did not sexually abuse C.J.F. after reviewing the CYS file and C.J.F.’s
interview at the Child Advocacy Center. Mother complains that the court made
this finding “prior to the hearing” before it had the opportunity to hear the
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7 We observe that the Wiretap Act defines “intercept,” in part, as “[a]ural or
other acquisition of the contents of any wire, electronic or oral communication
through the use of any electronic, mechanical or other device.” 18 Pa.C.S.
§ 5702. The Act exempts from its definition of “electronic, mechanical or other
device” any telephone “furnished to the subscriber or user by a provider of
wire or electronic communication service in the ordinary course of its business,
or furnished by such subscriber or user for connection to the facilities of such
service and used in the ordinary course of its business[.]” Id. Thus, at first
glance, the Wiretap Act did not prohibit M.F.2 from recording Mother because
he did so using his phone. We note, however, that the fact that M.F.2 recorded
Mother using his phone’s videotaping function excluded him from the Act’s
telephone exception. See Commonwealth v. Smith, 136 A.3d 170, 177 (Pa.
Super. 2016) (concluding that the trial court erred when it ruled that the use
of a smartphone’s “voice memo” app did not constitute the use of a “device”
under the Wiretap Act where the smartphone “was not being used, by any
measure, as a telephone”).
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evidence.8 Mother’s Brief at 27-30. She admits that C.J.F. did not disclose
any sexual abuse during his interview, but emphasizes that C.J.F. “also did
not specifically state the abuse was made up…. [C.J.F.] did not confirm or
deny the actions of [C.M.F.].” Id. at 28.
The record belies Mother’s claim. Before beginning the hearing, the trial
court made the following statement regarding its review of the CYS file.
THE COURT: We are here for a pre-trial conference. I have
the CYS file. I have reviewed the CYS file. I have also reviewed
the [Child Advocacy Center] video in question, and I am going to
return that to [CYS]. That will not be made part of this record.
[Father’s counsel]: The only thing that I would like to be
made a part of this record is the unfounded letter. I believe that
would be appropriate.
THE COURT: Well there is no question that I will make a
note that it’s unfounded, but there is no need to call anyone from
[CYS]. I have reviewed their entire record, and I believe that
based on the record, there is no way that [Mother’s counsel] could
prove what he was attempting to prove. That’s just -- it’s a matter
of proof, and the proof is not there.
N.T., 5/1/2018, at 4.
The trial court revisited this issue on two occasions during the hearing.
At the conclusion of the first day of testimony, the court stated, “I have not
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8 As discussed infra, the record shows that the court specifically declined to
make a finding during the hearing that the abuse did not occur. See N.T.,
5/15/2018, at 117. However, it later included such a finding in its opinion.
See Trial Court Opinion, 6/25/2018, at 3 (“[I]n this case we reviewed the
interview and determined that the abuse did not occur. This Court heard
absolutely no credible evidence regarding the allegations and to find otherwise
would have been error”).
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made a finding as to what happened regarding C.J.F.’s abuse allegations. I
have heard no evidence. There is no evidence whatsoever. And this is a court
of law, and I make my decisions based on evidence.” Id. at 133. Finally, at
the conclusion of the second day of testimony, the court stated as follows.
There is no evidence that the abuse of [C.J.F.] at the hands
of a 12-year-old occurred. However, I find it as likely that this
was put in [C.J.F.’s] head by [Mother]. And I can’t make a finding
that that happened just like I can’t make a finding abuse
happened.
N.T., 5/15/2018, at 117.
Thus, contrary to Mother’s argument, the trial court did not make a
finding regarding abuse prior to, or even during, the hearing. The court
concluded that the parties would not be able to prove either way whether
C.M.F. had abused C.J.F., or whether the allegations were part of a scheme
by Mother to reduce Father’s custody.
Moreover, it was not an abuse of discretion for the court to make this
finding after the conclusion of the hearing. The court was free to weigh the
evidence presented at the hearing and conclude that it did not demonstrate
that C.M.F. abused C.J.F., and we must defer to the court’s determination.
V.B., 55 A.3d at 1197. Even assuming for the sake of argument that the court
did abuse its discretion, the record demonstrates that Mother suffered no
prejudice, as the court awarded primary physical custody to Father even
before reaching this conclusion. Mother is not entitled to relief.
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In her final claim, Mother asserts that the trial court erred by allowing
Father’s counsel to question her about text messages that she denied sending.
This claim derives from her cross-examination, during which Father’s counsel
presented her with copies of the messages containing insulting statements
allegedly sent to Father. Mother contends that, after she denied sending the
messages, “any questioning concerning said text messages should have
stopped.” Mother’s Brief at 10. She also complains that the court held the
messages against her, even though she denied sending them, which proves
that it was biased against her. Id. at 31.
We discern no legal error. When Father’s counsel presented Mother with
copies of the relevant text messages, Mother stated that she sent some of the
messages but not others. N.T., 5/1/2018, at 62. Father’s counsel then went
through several of the messages in an effort to discern which ones Mother
admitted sending and which ones she denied sending. For example, Mother
admitted threatening to kill Father if C.J.F. suffers any further abuse on his
watch and telling him he does not “deserve to be a dad,” but denied calling
him a “scumbag” and saying that he would never see Children again. Id. at
67-68.
Accordingly, Father’s counsel did not ask Mother about text messages
she denied sending as Mother maintains. Mother denied sending only some
of the messages, and Father’s counsel questioned her to clarify which ones
she admitted sending and which ones she denied sending. This procedure
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was entirely proper. In addition, Father testified that the messages were not
altered, deleted, or changed in any way, and were an accurate representation
of his conversations with Mother. Id. at 130-31. The court was free to accept
Father’s testimony and its credibility determination in no way suggests bias
against Mother.
Based on the foregoing, we conclude that the trial court did not commit
an abuse of discretion or error of law by awarding primary physical custody of
Children to Father. Therefore, we affirm the court’s May 16, 2018 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2018
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