S.C.B. v. J.S.B. ( 2019 )

J-A11037-19
J-A11038-19
2019 PA Super 250S.C.B. : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
:
v. :
:
:
J.S.B. :
:
Appellant : No. 758 MDA 2018
Appeal from the Order Entered April 5, 2018
In the Court of Common Pleas of Cumberland County
Civil Division at No: 2016-CV-00825
S.C.B. : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
Appellant :
:
:
v. :
:
:
J.S.B. : No. 763 MDA 2018
Appeal from the Order Entered April 5, 2018
In the Court of Common Pleas of Cumberland County
Civil Division at No: 2016-CV-00825
S.C.B. : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
Appellant :
:
:
v. :
:
:
J.S.B. : No. 1688 MDA 2018
Appeal from the Order Entered September 12, 2018
In the Court of Common Pleas of Cumberland County
Civil Division at No: 2016-CV-00825
J-A11037-19
J-A11038-19
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
OPINION BY STABILE, J.: FILED: AUGUST 20, 2019
S.C.B. (“Mother”) and J.S.B. (“Father”) cross-appeal from the order
entered April 5, 2018, in the Court of Common Pleas of Cumberland County,
awarding both parties shared legal custody, awarding Mother primary physical
custody, and awarding Father partial physical custody, with respect to their
son, I.W.B. (“Child”), born in August 2014. Mother also appeals from the
order entered September 12, 2018, directing her to pay $500 in fees to Child’s
guardian ad litem (“GAL”), Samuel Andes, Esquire. After review, we vacate
the orders and remand for further proceedings.
This matter has a lengthy and tortuous procedural history. It began on
February 11, 2016, when Mother filed a complaint requesting shared legal and
primary physical custody of Child. The case culminated in a final custody order
entered August 3, 2016, which awarded the parties shared legal custody and
awarded Mother primary physical custody. The order awarded Father partial
physical custody during the first, third, and, if available, fifth weekend of each
month from Saturday at 9:00 a.m. until Sunday at 4:00 p.m., and during each
Wednesday from 4:00 p.m. until 7:00 p.m. Father did not appeal but filed a
motion for reconsideration on September 2, 2016.
On November 7, 2016, the trial court entered an order modifying the
August 3, 2016 custody order slightly. Once again, Father did not appeal the
order but filed a motion for reconsideration on December 2, 2016. Then, on
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March 16, 2017, the court entered an order purportedly addressing both of
Father’s motions for reconsideration and modifying the order of November 7,
2016. Mother appealed, and a prior panel of this Court vacated the order on
October 2, 2017. We held that the court lacked authority to act on Father’s
motions because it did not grant reconsideration expressly within the thirty-
day appeal period following the entry of each order. See S.C.B. v. J.S.B.,
179 A.3d 532 (Pa. Super. 2017) (unpublished judgment order).
Meanwhile, Mother filed a petition for special relief on March 3, 2017, in
which she requested, among other things, that the trial court order the parties
to participate in a custody evaluation. The court entered an order on April 18,
2017, stating it would defer its decision on Mother’s request for a custody
evaluation until it received and reviewed a report from the GAL. On June 16,
2017, Father filed a motion requesting that the court deny Mother’s petition.
The court denied Father’s motion on June 20, 2017, stating that its order of
April 18, 2017, remained in effect.1
On October 4, 2017, Father filed a petition for modification of custody,
requesting shared legal and primary physical custody of Child. Mother filed a
motion on November 2, 2017, requesting that the trial court conduct a hearing
on her petition for a custody evaluation. On December 21, 2017, the court
entered an interim order modifying the parties’ custody award pursuant to the
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1Mother filed a petition for contempt on June 28, 2017. Father filed his own
petition for contempt on July 20, 2017. Following a conciliation, the trial court
entered an order on August 31, 2017, directing the parties to withdraw their
contempt petitions.
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GAL’s recommendation. Specifically, the order awarded Father partial physical
custody on an alternating two-week schedule. The order awarded custody
from the end of Father’s workday on Friday until the start of his workday on
Monday during the first week. The order awarded custody from the end of
Father’s workday on Wednesday until the start of his workday on Friday during
the second week. In the order, the court also declined to delay the matter
further in order to obtain a custody evaluation. Mother filed a notice of appeal
from the interim order but later withdrew her appeal.
The trial court conducted a hearing on the merits of the parties’ custody
case on March 8, 2018. The parties presented evidence addressing a variety
of subjects. Most notably, the evidence focused on Father’s complaint that
the maternal grandparents babysit Child while Mother works, Mother’s claim
that Child suffers an excessive number of injuries while in Father’s care, and
Mother’s contention that the parties should undergo a custody evaluation in
order to investigate the injuries.
With respect to Child’s maternal grandparents, the record reveals that
Mother has an unconventional work schedule and often works at night. Mother
testified that eighty or ninety percent of the time she works some type of late
shift, such as the 3:00 p.m. to 11:00 p.m. shift, or the 10:40 p.m. to 6:40
a.m. shift. N.T., 3/8/18, at 157. Accordingly, she relies on Child’s maternal
grandparents to babysit Child while she is at work. She stressed that Child is
often asleep while she is working and that she prefers to work late shifts so
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she can spend as much time as possible with him during his waking hours.
Id. at 152-54. In response, Father suggested that Child should be in his care
while Mother is at work, explaining that he usually works from 6:30 a.m. until
3:30 p.m., and is available during the afternoons. Id. at 12, 18-21.
As for Mother’s claim that Child suffers an excessive number of injuries,
she testified that he becomes hurt far more frequently while in Father’s care
than in her care, and that Father exhibits a “callous reaction” whenever she
brings Child’s injuries to his attention. Id. at 130. Mother referenced, for
example, an incident during which Child injured his knee and had difficulty
walking, and an incident during which he reported that his head hurt, saying,
“dad hit me[.]” Id. at 133-35. In an effort to refute Mother’s claims, Father
presented the testimony of his friends, S.K. and M.P., who stated that Father
does not pose a safety risk to Child. Id. at 195-96, 202.
Finally, concerning Mother’s request for a custody evaluation, the trial
court heard the testimony of the parties’ former co-parenting counselor,
Ashley Milspaw, Psy.D., who recommended that a custody evaluation would
be beneficial to help determine whether Mother is trying to alienate Child from
Father, or whether she has “some justified concerns regarding the child’s
safety.” Id. at 97. Father questioned the need for an evaluation, describing
Mother’s request as a “delay tactic.” Id. at 82. He stated that he would be
willing to undergo an evaluation if Mother paid for it. Id. at 28-29. He also
accused Mother of trying to manipulate the outcome of the evaluation by
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contacting potential evaluators in advance and insisting that the evaluator
should know she is the one providing the funds. Id. at 25-26, 77-78. This
would be contrary to the GAL’s proposal that Mother place the funds in escrow
and that the GAL provide the funds to the evaluator. See id. at 217-18 (the
GAL discussing the proposal). Mother denied these allegations, stating that
she contacted only one potential evaluator in advance, before she knew the
evaluator would become involved in the case, and did so because she “was
not comfortable with the fact that thinking that [sic] a psychologist would
violate their ethics . . . . so I called . . . to see if in fact anyone had ever
escrowed money and then paid so that it was not known where the funds
came from. And she said she had never done that in her experience.” Id. at
118-29.
After the hearing, on March 16, 2018, Mother filed motions to compel
preschool attendance and for designation of child counselor/play therapist. In
her motions, Mother requested that the trial court enter an order directing
that Child attend a specific preschool to which Father objected, and an order
designating one of three enumerated mental health professionals to address
any potential behavioral issues or concerns relating to Child.
On March 22, 2018, the trial court entered an interim order awarding
Father partial physical custody of Child every other weekend from 4:00 p.m.
on Friday until 7:00 p.m. on Sunday, every Tuesday from 4:00 p.m. to 7:00
p.m., and every week from Thursday at 4:00 p.m. until “the exchange Friday
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morning with Grandparents, at the location Grandparents choose.” Interim
Order of Court, 3/22/18, at 1. On April 5, 2018, the court entered an order
indicating that it intended to render the March 22, 2018 interim order final.
In an opinion accompanying the order, the court conducted an analysis of
some, but not all, of the custody best interest factors listed at 23 Pa.C.S.A.
§ 5328(a). Specifically, the court addressed 23 Pa.C.S.A. § 5328(a)(1), (2),
(3), (4), (11), (12), (13), and (16), but failed to address 23 Pa.C.S.A.
§ 5328(a)(2.1), (5), (6), (7), (8), (9), (10), (14), or (15). The court stated
that it was incorporating by reference its prior analysis of the factors from its
order of August 3, 2016. Trial Court Opinion, 4/5/18, at 4. The court also
noted its finding in August 2016 that Father should receive increased custody
of Child “as his parenting skills develop” but that Mother has “the far more
developed infrastructure that . . . is in the best interest of the child.” Id. On
April 30, 2018, the court entered an order granting Mother’s motions to
compel preschool attendance and for designation of child counselor/play
therapist. Both Mother and Father filed notices of appeal from the April 5,
2018 order on May 4, 2018, along with concise statements of errors
complained of on appeal, and motions for reconsideration.2
Subsequently, the GAL filed a motion for payment of fees on September
4, 2018. In his motion, the GAL averred that Mother had failed to pay her
half of his fees, as directed by the trial court’s order appointing him as Child’s
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2 The trial court denied both motions for reconsideration on June 4, 2018.
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GAL. The court entered an order on September 12, 2018, directing Mother to
pay the GAL within ten days. Mother, acting pro se, timely filed a notice of
appeal from the September 12, 2018 order on October 11, 2018, along with
a concise statement of errors complained of on appeal.3, 4
Mother raises the following claims for our review regarding the April 5,
2018 order at Superior Court docket number 763 MDA 2018:
1. Did the [trial] court err in its final custody order when it failed
to consider factors 5, 8, 9, 10, 14 and 15?
2. Did the [trial] court err by not giving weighted consideration to
factors relative to the safety of []Child, insofar as Mother testified
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3 Mother filed a petition for contempt on June 25, 2018, in which she averred
that Father refused to return Child to her care on Friday, May 25, 2018, per
the order of April 5, 2018. On September 21, 2018, Mother filed yet another
petition for contempt, averring that Father refused to return Child to her care
on Friday, September 14, 2018.
4 Mother filed her notice of appeal pro se, despite continuing to retain private
counsel. As a general matter, our courts prohibit pro se filings by represented
appellants, and we treat those filings as legal nullities. See Commonwealth
v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, pro se notices of appeal are
an exception to this rule. In Commonwealth v. Cooper, 27 A.3d 994, 1007
(Pa. 2011), our Supreme Court held that a pro se notice of appeal, filed while
Cooper was represented by counsel, was not a legal nullity, but was simply
“premature.” More recently, this Court observed that pro se notices of appeal
filed by represented appellants are distinguishable from other forms of hybrid
representation, because they protect the appellants’ right to appeal as set
forth in the Pennsylvania Constitution. Commonwealth v. Williams, 151
A.3d 621, 624 (Pa. Super. 2016) (“Because a notice of appeal protects a
constitutional right, it is distinguishable from other filings . . . . We thus hold
that this Court is required to docket a pro se notice of appeal despite Appellant
being represented by counsel[.]”). Therefore, we do not treat Mother’s pro se
notice of appeal as a legal nullity.
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that Father has on multiple occasions returned [] Child with
injuries?
3. Did the [trial] court err by relying on a standard custom and
practice in fashioning its custody order?
4. Did the [trial] court err by denying Mother’s request for a
custody evaluation despite the fact that there was uncontroverted
expert testimony that such an evaluation was necessary, and
where Father claimed to have agreed to one anyway?
Mother’s Brief (763 MDA 2018) at 4 (suggested answers omitted).
Mother adds two more claims at Superior Court docket number 1168
MDA 2018, regarding the September 12, 2018 order:
I. Did the [trial] court violate [Mother’s] due process rights when
it ordered her to pay $500 to Mr. Andes, the [GAL], without taking
evidence, argument, or trial?
II. Did the [trial] court commit an error of law and/or abuse[] its
discretion when it ordered [Mother] to pay $500 to Mr. Andes
without taking evidence, argument, or trial, especially since the
Superior Court vacated the Order requiring her to pay $1,500 in
his fees and when Mr. Andes owes [Mother] a reimbursement?
Mother’s Brief (1168 MDA 2018) at 4 (suggested answers omitted).
In addition, Father raises the following claims at Superior Court docket
number 758 MDA 2018:
A. Did [the] trial court err by granting [the] maternal
grandparents custody of the minor child when the maternal
grandparents are not a party to the case and when that custodial
time supersedes [Father’s] custodial rights to the minor child
when [Mother] is working and when [Father] is available to care
for the minor child?
B. Did the trial court err in admitting photographic evidence over
[Father’s] objection when there was no testimony specifically
pertaining to the photographs, the photographs were not provided
in advance[,] there was no opportunity to review the photographs
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and when there was no opportunity to cross examine [Mother]
regarding her allegations concerning the photographs?
Father’s Brief at 2 (underlining and suggested answers omitted).
We begin by addressing whether we possess jurisdiction to review the
trial court’s orders. “‘[S]ince we lack jurisdiction over an unappealable order
it is incumbent on us to determine, sua sponte when necessary, whether the
appeal is taken from an appealable order.’” Gunn v. Automobile Ins. Co.
of Hartford, Connecticut, 971 A.2d 505, 508 (Pa. Super. 2009) (quoting
Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)).
It is well-settled that “[a]n appeal lies only from a final order, unless
permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.
Super. 2013). Generally, a final order is one that disposes of all claims and
all parties. See Pa.R.A.P. 341(b). “[A] custody order will be considered final
and appealable only if it is both: 1) entered after the court has completed its
hearings on the merits; and 2) intended by the court to constitute a complete
resolution of the custody claims pending between the parties.” G.B. v.
M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996).
With regard to the appeals at 758 MDA 2018 and 763 MDA 2018, the
trial court indicated in its order of April 5, 2018, that it intended to render the
March 22, 2018 order final. It is clear, however, that the April 5, 2018 order
did not resolve all of the custody claims pending between the parties at that
time, as Mother’s motions to compel preschool attendance and for designation
of child counselor/play therapist remained outstanding. Nonetheless, because
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the court later entered orders granting Mother’s motions on April 30, 2018,
these appeals are properly before this Court. Notably, even if the court had
not granted Mother’s motions until after the parties filed their notices of appeal
on May 4, 2018, we would still possess jurisdiction. See In re N.W., 6 A.3d
1020, 1021 n.1 (Pa. Super. 2010) (“[I]f [an] appeal is prematurely filed from
an interlocutory order, the appeal is perfected when a final, appealable order
is subsequently entered.”).
We reach the same result with respect to Mother’s appeal at 1688 MDA
2018 challenging the order directing her to pay her share of the GAL fees. At
the time the trial court entered the order of September 12, 2018, it had
completed its hearings on the merits of the custody action and had entered a
final custody order. There were no other custody hearings or claims pending
in the underlying matter. While the court entered the September 12, 2018
order during the pendency of the parties’ cross-appeals from the order entered
April 5, 2018, we note that the court possessed jurisdiction to do so.
Generally, a trial court may not proceed further in a case once a party appeals.
See Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these rules, after
an appeal is taken or review of a quasijudicial order is sought, the trial court
or other government unit may no longer proceed further in the matter.”).
There are, however, exceptions to this rule. Pa.R.A.P. 1701(b)(2) provides
that a court may “[e]nforce any order entered in the matter, unless the effect
of the order has been superseded as prescribed in this chapter[,]” even while
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the case remains on appeal. Here, the trial court’s September 12, 2018 order
purports to enforce the March 16, 2017 order5 appointing the GAL and setting
forth Mother’s obligation to pay a certain share of his fees. Accordingly, we
possess jurisdiction to review the September 12, 2018 order, and the court
possessed jurisdiction to enter the order.
We now turn to the merits of the appeals at 758 MDA 2018 and 763
MDA 2018. Our standard of review in child custody cases 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.
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)
____________________________________________
5 The trial court entered two orders on March 16, 2017, one appointing the
GAL, and one purporting to address Father’s motions for reconsideration. This
Court vacated only the latter order. See S.C.B., 179 A.3d 532 at 1 n.1 (“On
the same date, the trial court entered an order appointing Samuel Andes,
Esquire as [GAL] for . . . [Child.] As that order is not before us on appeal, we
do not disturb it.”).
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(citation omitted). The factors that trial courts must consider when awarding
custody are set forth at 23 Pa.C.S.A. § 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.
(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.
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(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another. A party’s effort to protect a child from
abuse by another party is not evidence of
unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
For ease of disposition, we begin by addressing Mother’s claims. In her
first claim, Mother contends the trial court erred by failing to consider all of
the Section 5328(a) factors when reaching its decision. Mother notes that the
court incorporated by reference its analysis of many of the factors from the
order of August 3, 2016. Mother’s Brief (763 MDA 2018) at 14-15. She
asserts that it was impermissible for the court to incorporate by reference a
portion of its analysis, rather than conduct a contemporaneous analysis of all
of the factors. Id. We agree.
As Mother contends, this Court has held that a trial court must analyze
all of the Section 5328(a) factors any time that it makes, or refuses to make,
a change to an award of custody. S.W.D., 96 A.3d at 401-07. We have held
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that incorporating by reference a previous and outdated analysis of the factors
is not sufficient. M.E.V. v. F.P.W., 100 A.3d 670, 681 (Pa. Super. 2014) (“[A]
trial court may not merely advert to prior, manifestly outdated findings of fact
in lieu of express and fully explained reconsideration of those factors in the
light of any changes in the parties’ circumstances that occurred after the prior
ruling and attendant explanation.”). Therefore, we must vacate the April 5,
2018 order, and remand for a complete and contemporaneous analysis of the
Section 5328(a) factors, followed by the entry of a new custody order.
We now turn our attention to the remainder of Mother’s claims. Because
it is not clear whether the trial court’s updated analysis of the Section 5328(a)
factors will render these claims moot following remand, we proceed to address
them on their merits. See J.R.M. v. J.E.A., 33 A.3d 647, 653 n.6 (Pa. Super.
2011) (noting that the appellant’s second claim may become moot depending
on what custody award the court orders after completing its analysis of the
Section 5328(a) factors on remand, but reviewing the claim anyway).
In her second claim, Mother argues that the trial court erred by failing
to give weighted consideration to the Section 5328(a) factors affecting the
safety of Child. See 23 Pa.C.S.A. § 5328(a) (“In ordering any form of custody,
the court shall determine the best interest of the child . . . giving weighted
consideration to those factors which affect the safety of the child[.]”). Mother
contends the court should have focused its analysis more heavily on her
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allegations that Child suffers an excessive number of injuries while in Father’s
care. Mother’s Brief (763 MDA 2018) at 15-16.
As we explained above, it is within the discretion of the trial court to
make determinations of weight of the evidence and credibility. V.B., 55 A.3d
at 1197. This Court is bound by the court’s factual findings when the record
supports them. Id. Here, it is apparent that the court did not accept Mother’s
allegations that Father poses a threat to Child’s safety. The court addressed
Mother’s concerns as follows in its discussion of Section 5328(a)(2): “Mother
asserts that Father downplays the injuries to the child that she observes on
[C]hild’s return from Father. However, to her credit these are not
‘emergencies’ that require immediate court intervention.” Trial Court Opinion,
4/5/18, at 5. The record supports this determination.
During the hearing, Mother described various injuries that she alleged
Child suffered while in Father’s care. However, the injuries Mother described
resolved quickly and did not require medical attention. For example, Mother
described an incident during which Child reported pain in his knee. Mother
recalled, “[H]e couldn’t even get up and down the steps. He would cry. He
was limping.” N.T., 3/8/18, at 134. She brought Child to the pediatrician,
who diagnosed possible “unwitnessed trauma” to the knee but did not provide
any treatment. Id. Indeed, the pediatrician’s notes from the appointment
indicate that Child was “in no acute distress” and was “able to jump up and
down on both legs, and climb 2 steps on [a] step stool in [the] exam room.”
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Plaintiff’s Exhibit 32. Mother acknowledged that Child’s knee began feeling
better the next day and that it is now fine. N.T., 3/8/18, at 134, 169.
Mother also described an incident during which Child reported that his
head hurt, and stated, “dad hit me[.]” Id. at 135. Notably, despite Mother’s
apparent belief that Father struck Child in the head, causing him prolonged
pain, she conceded that she did not take Child to the pediatrician, or take any
other action to address this issue, other than discussing it with Father. Id. at
135-36. She noted that Child’s “headache . . . resolved within a few hours[.]”
Id. at 170. In light of this evidence, it was within the trial court’s discretion
to reject Mother’s allegations as exaggerated or incredible. Therefore, the
court had no duty to give those allegations weighted consideration.
In her third claim, Mother argues that the trial court committed an error
of law by “relying on a public policy custom” when rendering its custody award.
Mother’s Brief (763 MDA 2018) at 16. She directs our attention to the court’s
citation to Frank v. Frank, 833 A.2d 194 (Pa. Super. 2003), for the
proposition that “[t]he public policy for custody is to assure reasonable and
continuing contact with both parents and the sharing of rights and
responsibilities in child rearing.” Trial Court Opinion, 4/5/18, at 6. Mother
notes that the court’s reference to Frank was more accurately a reference to
23 Pa.C.S.A. § 5301, which was part of the now-repealed predecessor to our
current child custody statute, and which enumerated the prior statute’s public
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policy goals.6 She contends “there are no acceptable ‘presumptions’ in favor
of shared physical custody in Pennsylvania and a court’s view of what it thinks
is good public policy has no place in deciding custody cases.” Mother’s Brief
(763 MDA 2018) at 17.
While Mother is correct in stating that Section 5301 is no longer in effect,
and our law creates no presumption in favor of shared physical custody, we
discern no error in the trial court’s brief discussion of public policy. Common
sense dictates that trial courts should strive, all other things being equal, to
assure that a child maintains a healthy relationship with both of his or her
parents, and that the parents work together to raise their child. However, as
the trial court in this case explained, the primary and overriding consideration
in any custody case is the subject child’s best interests, which may require the
parents to exercise custody unequally. Trial Court Opinion, 4/5/18, at 6 (“In
all custody cases, the custody determination is guided by the sixteen (16)
custody factors to establish a custodial arrangement in the best interests of
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6Our current child custody statute contains no statement of public policy.
Section 5301 stated, in its entirety:
The General Assembly declares that it is the public policy of this
Commonwealth, when in the best interest of the child, to assure
a reasonable and continuing contact of the child with both parents
after a separation or dissolution of the marriage and the sharing
of the rights and responsibilities of child rearing by both parents
and continuing contact of the child or children with grandparents
when a parent is deceased, divorced or separated.
23 Pa.C.S.A. § 5301 (repealed).
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the child. In the utopian custody world parents would equally share custody.
We do not live in this idyllic world[.]”) (citation omitted). Because the court
was aware of, and applied, the appropriate best interest standard, Mother is
not entitled to relief on this claim.
Finally, in her fourth claim, Mother argues that the trial court erred by
refusing to order a custody evaluation. Mother emphasizes that Dr. Milspaw
recommended an evaluation and asserts that it was improper for the court to
reject her uncontroverted expert opinion. Mother’s Brief (763 MDA 2018) at
18-20. She insists that an evaluation was necessary in order to “explore [her]
concerns for the [c]hild’s safety.” Id. at 20. We disagree.
Our rules of civil procedure render custody evaluations discretionary.
See Pa.R.C.P. 1915.8(a) (“The court may order . . . any party to submit to
and fully participate in an evaluation by an appropriate expert or experts.”)
(emphasis added). Thus, the trial court was under no obligation to order an
evaluation in this case. It is true the court could not refuse to consider Dr.
Milspaw’s opinion recommending that an evaluation take place. M.A.T. v.
G.S.T., 989 A.2d 11, 20 (Pa. Super. 2010) (“[W]hile a trial court is not
required to accept the conclusions of an expert witness in a child custody case,
it must consider them, and if the trial court chooses not to follow the expert’s
recommendations, its independent decision must be supported by competent
evidence of record.”). It is clear, however, that the court did consider Dr.
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Milspaw’s opinion; it simply found that opinion unconvincing. The following
discussion took place between the court and Dr. Milspaw during the hearing:
Q. I understand you’re recommending a custody evaluation
take place. But my question is why. What are the complexities?
What are the allegations? What are the concerns?
A. [Mother] [h]as [a] number of safety concerns that she is
-- it is difficult for her to trust [F]ather and to trust [C]hild’s ability
to be safe with [F]ather based upon her experiences with [F]ather
as well as some historically documented aggression and assaults
that she has knowledge of [F]ather’s, that investigating those --
certain things were beyond the scope of what I would consider
ethically my role to be as the co-parenting counselor.
Father also has concerns of [M]other saying that she is just
micromanaging and controlling and trying to keep his son from
him which I believe are also legitimate concerns that also need to
be explored.
Q. And if the Court hears them, all those allegations in a
public forum at the custody trial, you still recommend a custody
evaluation?
A. I believe that that could be helpful. But it is a good idea
to have a psychologist who is able to weigh in, use their expertise,
you know, to determine what the impact of that may be on the
co-parenting relationship as well as their parenting style as well
as the impact that could have psychologically and developmentally
on the child himself.
Q. So the Court is to give its decision-making authority over
tho [sic] this psychologist?
A. No, absolutely not. But I think it can be incredibly
beneficial for yourself to have that knowledge and insight done so
you can make a more fully informed decision.
N.T., 3/8/18, at 109-10.
Our review of the record supports the trial court’s decision to reject Dr.
Milspaw’s recommendation. Mother presented extensive testimony during the
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hearing regarding Child’s alleged excessive injuries while in Father’s care. As
a result, the court had ample evidence upon which it could make its decision
regarding Mother’s credibility and the purported danger Father poses to Child.
It was reasonable for the court to conclude that an evaluation would have
been unnecessary, as any evaluation addressing these issues would have been
merely cumulative of the evidence already available to the court. Accordingly,
no relief is due.
We next turn our attention to Father’s claims. Once again, it is not clear
whether the trial court’s analysis of the Section 5328(a) factors will render
these claims moot after remand, so we proceed to their merits. J.R.M., 33
A.3d at 653 n.6.
In his first claim, Father contends the trial court erred by awarding
custody of Child to the maternal grandparents. Father argues that the court,
in effect, made the maternal grandparents parties to this action, despite the
fact they never sought to intervene. Father’s Brief at 22. He asserts the court
also violated 23 Pa.C.S.A. § 5327(b), which creates a presumption that
parents, rather than third parties, should be awarded custody of children, and
claims the court impinged upon his constitutional right to make decisions
concerning Child’s care, custody, and control. Id. at 23-27.
Father mischaracterizes the contents of the trial court’s orders. Starting
with its August 3, 2016 order, the court directed that the maternal
grandparents would serve as “the designated childcare providers unless
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otherwise agreed to or by further Court Order. Father’s request for outside
care is rejected at this time as such social developments are not warranted.”
Order, 8/3/16, at 5. None of the court’s subsequent orders, including the
order on appeal in this case, awarded custody to the maternal grandparents.
Instead, the record indicates that Mother and Father disagreed on who should
provide childcare while Mother was working, and reflects that the court
decided in Mother’s favor by directing the maternal grandparents fill that role.
The record supports this determination, as the maternal grandparents reside
very close to both Mother and Father, and Father has no available family near
the area. N.T., 3/8/18, at 9, 78-79, 113. Further, the maternal grandparents
are retired and are readily available to provide care for Child. Id. at 182-84.
Therefore, we conclude the court did not commit an error of law.
In his second and final claim, Father argues the trial court erred by
admitting into evidence photographs purporting to depict the excessive
number of injuries sustained by Child. Father maintains he did not have the
opportunity to view the photographs in advance or to cross-examine Mother
about them, and argues Mother failed to authenticate the photographs
properly. Father’s Brief at 29-33.
Our review of the record reveals the following. At the hearing, Mother’s
counsel informed the trial court that she would be presenting a series of
photographs on a USB drive. N.T., 3/8/18, at 130-31. While Mother’s counsel
stated she had provided the photographs to Father’s counsel in advance,
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Father’s counsel appeared confused and unaware of them. Id. at 131. As a
result, Mother’s counsel suggested they “move beyond these pictures, the
sharing of these pictures at this time and come back to it.” Id. at 132. At
the conclusion of the hearing, the court and the parties’ counsel discussed
whether to admit the photographs into evidence. Father’s counsel noted that
Mother’s counsel allowed him to view the photographs during a break. Id. at
221. The following exchange then took place:
[Father’s counsel]: . . . . I clicked on one which was a picture
that appeared of the diaper rash. So I don’t have a full
understanding of what pictures are actually contained on that.
Mother generally referenced photos on the stand, but there
wasn’t an opportunity -- an opportunity to contemporaneously
review the photos that she is referencing and to cross-examine
her testimony and the photos together. So based on that, I would
object to the admission of exhibits I have no idea what they are,
and there was no opportunity to cross-examine.
THE COURT: I’m going to conditionally admit [the USB
drive]. I haven’t had a chance to look at it. I can’t review it. I
will have to review it in order to make a more fuller ruling on there.
I know there was testimony. I don’t know what’s on here. But
we will look, and we will get you an answer.
Id. at 221-22.
We agree with Father that Mother did not properly authenticate any of
the photographs contained on the USB drive, which appears in the certified
record before this Court. See Pa.R.E. 901(a) (“To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.”); see also Pa.R.E. 1007 (“The proponent may prove the content
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of a writing, recording, or photograph by the testimony, deposition, or written
statement of the party against whom the evidence is offered.”). Thus, to the
extent the trial court considered the photographs when conducting its analysis
of the Section 5328(a) factors, it erred. Absent proper authentication and
admission into evidence at a hearing, we direct the court not to consider the
photographs when conducting its new and complete analysis of the Section
5328(a) factors on remand.
We now consider Mother’s claims pertaining to the order of September
12, 2018, on appeal at 1688 MDA 2018. These claims are interrelated, so we
address them together. Mother contends the trial court violated her right to
due process by ordering her to pay the GAL’s fees without holding a hearing
or allowing her to respond to the GAL’s motion requesting payment. Mother’s
Brief (1688 MDA 2018) at 14-18. Mother also argues the court directed her
to pay the first $1,500 in fees to the GAL in its order of March 16, 2017, in
lieu of contributing to the cost of Father’s previously supervised visits with
Child. Id. at 13. However, she continues, this Court vacated the March 16,
2017 order, because the court entered it without granting reconsideration
expressly. Id. Based on this, Mother concludes that this Court also vacated
her obligation to pay the GAL $1,500, and that the GAL now owes her a refund.
Id. at 13-21.
In response to Mother’s claims, the trial court issued a brief statement.
The court asserts that it had the authority to appoint a GAL and apportion his
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fees between the parties pursuant to our child custody statute. Statement in
Lieu of 1925(a) Opinion, 1/2/19, at 2. The court also maintains that Mother
waived any challenge to the GAL’s fee requests by paying his initial invoice in
July 2017. Id.
We agree with Mother that the trial court should not have ordered her
to pay the GAL without first conducting at least a brief hearing. In the absence
of Mother’s agreement that the averments in the GAL’s motion were correct,
the amount of fees that she owes the GAL remains a disputed factual issue.
See, e.g., Tecce v. Hally, 106 A.3d 728, 732 (Pa. Super. 2014), reargument
denied (Jan. 30, 2015), appeal denied, 125 A.3d 778 (Pa. 2015) (“The trial
court made factual findings and credibility determinations without taking
testimony, without receiving evidence and without allowing cross-
examination. This was plain error.”). Without such a hearing, the record does
not support the court’s order directing Mother to pay the GAL $500. V.B., 55
A.3d at 1197. Therefore, we also vacate the order of September 12, 2018,
and remand for the court to hold a hearing addressing the issue of the amount
of fees, if any, Mother owes the GAL.
Based on the foregoing, we vacate the order of April 5, 2018, on appeal
at 758 MDA 2018 and 763 MDA 2018, and remand for a complete analysis of
the Section 5328(a) factors in accordance with this Opinion. We also vacate
the order of September 12, 2018, on appeal at 1688 MDA 2018, and remand
for a hearing to address Mother’s challenge to the GAL’s fee request.
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Orders vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2019
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