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

J-S34014-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
D.J. :
:
Appellant : No. 1480 WDA 2018
Appeal from the Order Entered September 14, 2018
In the Court of Common Pleas of Greene County Civil Division at No(s):
383 A.D. 2014BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 16, 2019
Appellant, D.J. (“Father”) appeals from the September 14, 2018 Order,
which, inter alia, denied Father’s Petition to Modify Custody and awarded
primary physical custody of G.J.J. (“Child”) to Appellee, S.C. (“Mother”). 1
Upon careful review, we affirm.2
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1Although the trial court dated the Order September 13, 2018, the court clerk
docketed the Order and served the parties with a copy on September 14,
2018. We have changed the caption accordingly. See Pa.R.A.P. 108(a)(1)
(explaining that the day of entry shall be the day the clerk of the court mails
or delivers copies of the order to the parties).
2 We deny Mother’s Motion to Quash Appeal and request for attorney’s fees
and costs. Mother asserts that Father failed to file a designation of contents
of the reproduced record and to serve a reproduced record, in violation of
Pa.R.A.P. 2154, and that dismissal is the appropriate remedy pursuant to
Pa.R.A.P. 2188. Motion to Quash, filed 4/15/19, at ¶¶ 4, 6, 7. Our
Pennsylvania Supreme Court has stated that the “extreme action of dismissal
should be imposed by an appellate court sparingly, and clearly would be
inappropriate when there has been substantial compliance with the rules and
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* Retired Senior Judge assigned to the Superior Court.
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The relevant factual and procedural history is as follows. Father and
Mother were never married and are parents to now 6-year-old Child. Father
and Mother began dating in high school when Mother moved into Father’s
home and Father’s mother (“Paternal Grandmother”) became Mother’s legal
guardian. Father and Mother dated on and off for several years until Mother
ended the relationship.
Mother worked outside of the home in the past but is currently a stay-
at-home mother who lives with her paramour, and the two own a home
together. Father recently obtained employment with FHC, a drilling
contractor, and recently moved to a new residence with Paternal
Grandmother. Father has a suspended license due to two Driving Under the
Influence of Alcohol (“DUI”) convictions in Pennsylvania, and relies on Paternal
Grandmother and his sisters for transportation.
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when the moving party has suffered no prejudice.” Stout v. Universal
Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980). We conclude
Father’s infractions are not serious, Mother is not prejudiced, and our review
is not hampered. Thus, we decline to quash this appeal. See Hagel v.
United Lawn Mower Sales & Serv., 653 A.2d 17, 19 (Pa. Super.
1995) (declining to quash the appeal, or impose other sanctions, where the
appellant failed to designate or file a reproduced record, but the violations of
the Rules of Appellate Procedure were not so serious as to preclude the Court's
ability to properly evaluate and address the substantive arguments advanced
by the parties); Downey v. Downey, 582 A.2d 674, 678 (Pa. Super.
1990) (declining to dismiss the appeal because of appellant's failure to serve
the appellees with a copy of the designated reproduced record, and noting
that “Pa.R.A.P. 2156 expressly permits an appellee to file his own
supplemental reproduced record with the court where the parties are unable
to cooperate on the preparation of the reproduced record.”).
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Parents have been in a custody dispute since June 2014, when Mother
filed a Complaint for Custody of then-17-month old Child.
On July 22, 2014, the trial court awarded parents shared legal and
physical custody of Child; the trial court ordered Child to live with Mother 4
nights a week and Father 3 nights a week.
In August 2017, Mother filed a Motion for Emergency Special Relief and
a Petition for Modification of Custody, alleging that Father was living with his
father (“Paternal Grandfather”), a registered sex offender who was recently
released from prison. The trial court granted Mother temporary primary
custody and stayed Father’s overnight physical custody pending a hearing. In
September 2017, Father filed a Petition for Modification of Custody and
Relocation. The parents agreed to an Interim Order awarding Mother primary
physical custody and Father partial physical custody in an alternating two-
week pattern of 2 nights the first week and 3 nights the second week. The
Interim Order also specified that Child was to have no contact with Paternal
Grandfather.
In March 2018, Mother filed a Motion for Contempt; Stay of Custody
Order and Emergency Hearing alleging, inter alia, that Father was recently
charged with DUI, Child was not attending preschool while in Father’s care,
and Father was allowing Paternal Grandfather to babysit Child in the mornings
in violation of court Order. The trial court stayed Father’s custody.
In April 2018, after an emergency hearing, the court entered an Interim
Order granting parents shared legal custody, Mother primary physical custody,
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and Father partial physical custody in an alternating two-week pattern of 4
nights the first week and 1 night the next week. The Interim Order also
specified that parents were not to excessively imbibe alcohol in Child’s
presence and/or use any illegal drugs.
On May 15, 2018, and August 21, 2018, the trial court held hearings on
various pending petitions and motions, including Father’s Petition to Modify
Custody. The trial court heard testimony from Verona Allman, Head Start
caseworker; Sabrina Shushock, Receptionist at Child’s Pediatrician; Mother;
Jason Ocker, Mother’s paramour; Father; and Paternal Grandmother.
On September 14, 2018, the trial court issued an Order and Opinion
that, inter alia, denied Father’s Petition for Modification of Custody. The trial
court awarded parents shared legal custody, Mother primary physical custody,
and Father partial physical custody 3 nights per week every other week during
the school year. The trial court awarded the parents 50/50 shared physical
custody during the summer months.
Father timely appealed. Both Father and the trial court complied with
Pa.R.A.P. 1925.
Father raises the following issues on appeal:
[1.] Whether the trial court abused its discretion in awarding
primary custody to Mother, when the testimony and evidence
presented at trial established that the Order, dated September 13,
2018, further reducing [Father’s] custody, is not in the best
interest of [Child].
[2.] Whether the trial court erred in allowing [Mother] and her
counsel, at the time of trial and during the direct testimony of
[Father], to offer what amounted to rebuttal testimony on
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numerous occasions as they sat at counsel table, creating an
unfair advantage for [Mother] and a disadvantage for Appellant.
Father’s Brief at 4.
The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, governs all custody
proceedings commenced after January 24, 2011. E.D. v. M.P., 33 A.3d 73,
77 (Pa. Super. 2011). The Custody Act requires a trial court to consider all of
the Section 5328(a) best interests factors when “ordering any form of
custody.” 23 Pa.C.S. § 5328(a). A trial court must “delineate the reasons for
its decision when making an award of custody either on the record or in a
written opinion.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa. Super. 2014). See
also 23 Pa.C.S. § 5323(a), (d). However, “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. 2013).
“The paramount concern in child custody cases is the best interests of
the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018). “The best-interests
standard, decided on a case-by-case basis, considers all factors which
legitimately have an effect upon the child’s physical, intellectual, moral and
spiritual well-being.” M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super. 2017).
This Court reviews a custody determination for an abuse of discretion.
In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse
of discretion “merely because a reviewing court would have reached a different
conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial
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court abuses its discretion if, in reaching a conclusion, it overrides or
misapplies the law, or the record shows that the trial court’s judgment was
either manifestly unreasonable or the product of partiality, prejudice, bias or
ill will.” Id.
Further, when this Court reviews a trial court’s “best interests” analysis
in custody matters, our scope of review is broad, but we are “bound by
findings supported in the record, and may reject conclusions drawn by the
trial court only if they involve an error of law, or are unreasonable in light of
the sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509,
512 (Pa. Super. 2006) (quotation and citation omitted). Importantly, “[o]n
issues of credibility and weight of the evidence, we defer to the findings of
the trial judge who has had the opportunity to observe the proceedings and
demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super.
2015) (citation omitted). We can only interfere where the “custody order is
manifestly unreasonable as shown by the evidence of record.” Saintz, 902
A.2d at 512 (citation omitted).
In his first issue, Father avers that the trial court abused its discretion
in awarding primary physical custody to Mother. Father’s Brief at 4. Father
argues, without citation to the record, that the trial court gave preference to
Mother as a “stay-at-home mother” and failed to consider that Child is in
school during the day while Father works. Id. at 8. Father also asserts, again
without citation to the record, that the trial court chastised only Father for
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withholding Child from preschool when Mother did the same thing, but Father
fails to challenge any specific trial court finding. Id. at 8. Finally, Father
contends that the trial court failed to consider evidence that Child’s behavior
changed at preschool when Father’s custody was suspended, essentially
challenging the weight that the trial court placed on this evidence. Id. at 9.
This issue is underdeveloped and devoid of merit.
Our review of the record reveals that the trial court did not abuse its
discretion when it awarded primary physical custody to Mother. The trial court
engaged in an analysis of the Section 5328(a) factors when making its custody
determinations and the record supports the trial court’s findings. The trial
court found that Child is safe and loved by both families, has formed a healthy
relationship with each parent, and the overall mental and physical condition
of the parties and other members of their households are fine. Opinion and
Order, filed 9/14/18, at 8, 9 (unpaginated). While the trial court found that
both parties engage in petty behavior and are unable to communicate
adequately, the trial court concluded that Father is spiteful, has a short fuse,
becomes angry in a flash, and has seriously threatened Mother’s paramour.
Id. at 6, 8 (unpaginated). The trial court also found that Father has a criminal
record of DUI and Providing Alcohol to a Minor. Id. at 9 (unpaginated).
Notably, the trial court made a specific finding that “Father’s testimony is not
always credible.” Id. at 9 (unpaginated).
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The trial court found that Mother has been Child’s “primary custodian
since birth” and has been more consistent and nurturing in her relationship
with Child. Id. at 1, 8. The trial court made findings that Mother is better
capable of providing for all of the parental duties on a daily basis; is more
likely to attend to the daily physical, emotional, developmental, educational
and special needs of Child; has a more suitable and stable domestic situation;
is more available to care for Child and make appropriate childcare
arrangements when necessary; and is more likely to encourage and permit
frequent and continuing contact between Child and Father. Id. at 6-8.
As stated above, the record supports the trial court’s findings. We will
not reweigh the evidence or interfere with the trial court’s credibility
determinations. See K.T., 118 A.3d at 1159. Accordingly, we conclude that
the trial court did not abuse its discretion when it awarded primary physical
custody to Mother during the school year.
In his second issue, Father contends that the trial court violated the
Pennsylvania Code of Civility by allowing Mother to correct testimony, make
statements, and present evidence during Appellant’s case-in-chief. Father’s
Brief at 9-10 (citing 204 Pa.Code § 99.2). Father argues that this put him at
a severe disadvantage and that he should receive a new trial. Id. at 12.
Father asserts that he was generally disadvantaged, but fails to cite any legal
authority to explain how the trial court’s conduct specifically disadvantaged
him. Father also fails to cite any legal authority to support his argument that
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he should receive a new trial. Accordingly, we find this issue to be waived.
See R.L.P. v. R.F.M., 110 A.3d 201, 208–09 (Pa. Super. 2015) (stating that
arguments that are not appropriately developed are waived, including those
where the party has failed to cite any authority in support of a contention).
In sum, the trial court engaged in an analysis of the Section 5328(a)
factors when making its custody determinations and the record supports the
trial court’s findings. Accordingly, we find no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/19
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