T.D. v. E.D. ( 2018 )

J-S41001-18
2018 Pa. Super. 235
T.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
E.D. : No. 515 EDA 2018
Appeal from the Order Entered January 25, 2018
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): 0C1605792
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 28, 2018
Appellant, T.D. (“Father”), appeals from the order entered on January
25, 2018, in the Philadelphia County Court of Common Pleas, denying Father’s
Petition to Modify Custody, in which he requested that the child, A.D. (“Child”),
born in February 2009, be permitted to travel on an airplane between
Philadelphia and Boston as an unaccompanied minor. Pursuant to a motion
filed on June 14, 2018, Father further moves to suppress Mother’s brief filed
on June 8, 2018. After a careful review, we affirm the trial court’s order and
deny Father’s motion to suppress Mother’s brief.
The trial court summarized the relevant procedural and factual history
as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S41001-18
I. Procedural History (See Docket)
Father currently resides in Boston. E.D. (“Mother”) and A.D.
live in Philadelphia. Father and Mother entered into a final custody
Order by agreement on September 19, 2016, granting them
shared legal custody of A.D. Pursuant to the Order, Mother has
primary physical custody, and Father has partial physical custody
every other weekend. The Order also outlines custodial rights for
holidays, summertime vacations, travel costs, etc. The clause at
issue states: “If child is flying/traveling, he must be accompanied
by parent and/or agreed upon third party (designee, au pair,
babysitter) at that parent’s expense.” (Order dated September
19, 2016.) The Order goes on to state: “At ten years old, child
may fly as an unaccompanied minor unless either parent files a
timely petition to modify.”
On April 17, 2017, Father filed a Petition to Modify Custody
requesting that the court allow A.D. to fly to and from Boston and
Philadelphia as an unaccompanied minor. No other issues were
presented in the Petition. The court held a full hearing on January
25, 2018,[1] and denied Father’s Petition. Father filed the instant
notice of appeal and Pa.R.A.P. 1925(b) statement on February 14,
2018.[2]
II. Facts
The parties began their relationship in Boston. Father has
resided in Boston since July 2009 and has lived in the Boston area
since 1999. Mother moved to Philadelphia toward the end of
2008.
The flight time between Boston and Philadelphia is
approximately one hour. When visiting A.D. every other weekend
over the past eight years, Father would fly from Boston on Friday
____________________________________________
1 Both Father and Mother were present and represented by counsel. Each also
testified on their own behalf.
2 Father filed a Petition for Reconsideration on February 6, 2018. This petition
was not ruled upon by the trial court and is deemed denied. See Pa.R.C.P.
1930.2(b) (“A party aggrieved by the decision of the court may file a motion
for reconsideration in accordance with Pa.R.A.P 1701(b)(3). If the court does
not grant the motion for reconsideration within the time permitted, the time
for filing a notice of appeal will run as if the motion for reconsideration had
never been presented to the court.”).
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and arrive in Philadelphia at approximately 7:00 – 8:00 p.m. He
would then go to Mother’s house, pick up A.D., and spend the
weekend with A.D. at a hotel. The weekends in Philadelphia are
often filled with extracurricular and other activities, with a portion
of the time spent watching movies in the hotel room. On Sunday
evening, Father drops off A.D. at Mother’s house and flies back to
Boston. Father testified that, in the time he has been flying to
and from Philadelphia, only one flight has been diverted, and no
flight has been cancelled. Occasionally, flights have been delayed,
but by no more than thirty minutes.
Father believes it would be unfeasible for him to fly to
Philadelphia and accompany A.D. on a flight back to Boston on
Friday evening, only to turn around and accompany A.D. back to
Philadelphia on Sunday evening and return to Boston the same
night.
The parties agree that A.D. has been on numerous flights,
both nationally and internationally. Both parties would be
agreeable to a babysitter or designated third party accompanying
A.D. on an airplane to and from Boston, but Father testified that
the third party would have to be “vetted.”
Father and Mother have concerns about A.D. flying as an
unaccompanied minor. But Mother is opposed to the child flying
as an unaccompanied minor at age eight, and Father believes the
child can fly as an unaccompanied minor at age eight. Father
reached this conclusion after reviewing airline procedures, talking
to people who are responsible for operating those programs, and
talking to other parents who have allowed their children to fly as
an unaccompanied minor. Father maintains his belief that A.D. is
mature enough to fly as an unaccompanied minor because of
A.D.’s well-mannered demeanor around adults, his behavior on
airplanes, and his lack of fear of flying.
Mother is opposed to A.D. flying as an unaccompanied minor
because she is concerned for A.D.’s safety and does not believe
he is sufficiently mature. Mother is concerned about A.D. talking
to strangers due to his sociable and trusting disposition. In
addition, she testified about a turbulent flight she and A.D. took
that made A.D. feel scared and nervous; Mother said A.D. did not
share this anecdote with Father. In the many times A.D. has flown
with Father, Mother has never received any communications from
Father about A.D. having any issues. Mother stated that A.D.
enjoys spending time with Father but does not want to travel alone
because he is scared.
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Trial Court Opinion (“T.C.O.”), 3/16/18, at 1-4 (citations to record omitted)
(footnotes omitted).
On appeal, Father raises the following issues for our review:
1. Did the trial court abuse its discretion and err as a matter of
law by determining that the child need not be interviewed by
the [c]ourt at the January 25, 2018, hearing?
2. Did the trial court abuse its discretion and err as a matter of
law and fact by precluding testimony about the unaccompanied
minor protocols set forth by various airlines as contained in the
exhibits and admitted into evidence at the hearing?
3. Did the trial court abuse its discretion and err as a matter of
law and fact by failing to consider testimony and evidence
regarding security measures for unaccompanied minors such
as seat assignments, flight attendant assignments, call button
protocols, protocols for flight changes, cancellations,
scheduling irregularities, identification requirements, and
phone call availability while in flight?[3]
4. Did the trial court abuse its discretion and err as a matter of
law and fact when it considered evidence that was not part of
the record and not necessarily accurate, such as protocols for
an in-flight disaster and that the child would be sitting with
strangers (possibly a registered sex offender)?
5. Did the trial court abuse its discretion and err as a matter of
law and fact when it made findings that were not supported by
record evidence and reached conclusions that were
unreasonable based upon the evidence presented?[4]
Father’s Brief at 4 (footnotes omitted).
____________________________________________
3 The trial court addressed Father’s second and third issues together as it
found them interrelated. T.C.O. at 5 n.5. Further, Father addresses these
issues together in his brief. Father’s Brief at 4 n.1.
4Father addresses his fourth and fifth issues together in his brief. Father’s
Brief at 4 n.2.
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In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted). See
E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015).
This Court consistently has held:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quotation
omitted). In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
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M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations
omitted).
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section
5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a).
Section 5338 of the Act provides that, upon petition, a trial court may
modify a custody order if it serves the best interests of the child. 23 Pa.C.S.A.
§ 5338. Section 5328(a) sets forth the best interest factors that the trial court
must consider in doing so. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2
(Pa.Super. 2011); 23 Pa.C.S.A. § 5328(a) (listing the factors).
However, we have clarified that the factors set forth by Section 5328(a)
are not required to be addressed where an order merely deals with a discrete
and distinct issue. S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014).
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It is also true that resolution of an otherwise ancillary matter may
affect a form of custody and require consideration of the § 5328(a)
factors. For instance, the choice of a child’s school may factor into
a trial court’s decision to award a form of custody when the trial
court is addressing a request to establish or change legal or
physical custody in connection with the choice of school. One
parent in a custody dispute may argue that he or she is entitled
to primary physical custody because his or her residence has much
better schools. On the other hand, many times- like here- these
items may appear as independent, discrete issues advanced by
motion or petition that does not require a change in the form of
custody. Although any decision requires consideration of the
child’s best interest, only the former situation requires
consideration and application of the § 5328(a) factors.
Id. at 403. See M.O. v. J.T.R., 85 A.3d 1058, 1062-63 (Pa.Super. 2014)
(“Because the trial court did not make an award of custody, but merely
modified a discrete custody-related issue, it was not bound to address the
sixteen statutory factors in determining the children’s best interest.”).5
Before we address Father’s issues on the merits, however, we first
address his motion to suppress Mother’s brief. Father argues that Mother’s
brief not only fails to comply with Pennsylvania Rule of Appellate Procedure
2185(2), as well as a specific order of this Court as to timeliness, but should
be “entirely suppressed from this Court’s consideration in this matter because
the brief fails to materially comply with the Pennsylvania Rules of Appellate
Procedure, specifically, but not limited to, 2101; 2119(a) and (b); 2119(c),
____________________________________________
5 Instantly, the trial court determined that Father’s petition raised only a
discrete issue, not requiring examination of the Section 5328(a) custody
factors. T.C.O. at 6. This determination was not challenged by either party
in the court below or on appeal.
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and 2132(a) and (b) and prejudices [his] ability to even ascertain, let alone
verify, the statements within the brief.” Application to Suppress Appellee’s
Brief, 6/14/18, at 3-4, ¶¶12, 17. He asserts that Mother filed her brief
seventeen days after the May 23, 2018, deadline set by this Court pursuant
to Mother’s request for an extension;6 failed to cite to any legal authority
and/or to the record within her argument and discussion; and included
exhibits that were not part of the record. Id. at 1-3, ¶¶4-17.
While we note with disapproval the untimeliness of Mother’s brief and
the lack of citation to legal authority within her brief,7 we decline Father’s
motion to suppress. We observe that Mother’s brief, although filed after May
23, 2017, was, nonetheless, filed prior to the matter being assigned to a panel
on June 25, 2018. Moreover, Father filed a reply to Mother’s brief on June 15,
2018, also before the matter was assigned to a panel. Further, although
____________________________________________
6 Pursuant to order dated May 15, 2018, in granting Mother’s request for an
extension of time to file a brief, this Court stated, in part, “Absolutely no
further extensions shall be granted. Indeed, the Prothonotary of this
Court is directed to assign this appeal to a panel of this court without further
notice if appellee’s brief is not properly filed by May 23, 2018.” Order,
5/15/18 (emphasis in original).
7 See Pa.R.A.P. 2101 (“Briefs and reproduced records shall conform in all
material respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they may be
suppressed….”); In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011) (quoting
In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010) (“[W]here an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived.”)).
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deficient in some instances, Mother’s brief does, in fact, provide substantial
citation to the record with her argument and discussion. Notwithstanding, we
disregard the exhibits appended to Mother’s brief, as they are not part of the
certified record. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super.
2006) (en banc) (noting that an appellate court may only consider that which
is in the certified record).
Turning now to Father’s issues on appeal, with his first issue, Father
argues that the trial court erred in not interviewing Child with regard to flying
as an unaccompanied minor. Father’s Brief at 13-17.
As to the interview of a child, Pennsylvania Rule of Civil Procedure
1915.11(b) is discretionary and does not mandate that a trial court interview
a child in a custody matter. Pa.R.C.P. 1915.11(b). Likewise, Pennsylvania
Rule of Civil Procedure 1915.11(c) does not mandate a child’s attendance at
a custody hearing. Rule 1915.11 provides, in relevant part:
Rule 1915.11. Appointment of Attorney for Child. Interview of
Child. Attendance of Child at Hearing or Conference
...
(b) The court may interview a child, whether or not the child is
the subject of the action, in open court or in chambers. The
interview shall be conducted in the presence of the attorneys and,
if permitted by the court, the parties. The attorneys shall have the
right to interview the child under the supervision of the court. The
interview shall be part of the record.
(c) Unless otherwise directed by the court, the child who is the
subject of the action shall not be required to attend a hearing
before the court or a conference.
Pa.R.C.P. No. 1915.11(b), (c) (emphasis added).
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In determining that it was contrary to Child’s best interest to fly as an
unaccompanied minor and there was no abuse of discretion in declining to
interview Child, the trial court reasoned:
Considering the factors relevant to the issue of whether it
would be in A.D.’s best interest to fly as an unaccompanied minor,
the court found that it was in A.D.’s best interest to keep the
underlying Order intact. The record is devoid of any competent
evidence showing that A.D.’s flying as an unaccompanied minor
would further his best interest. Rather, Father’s evidence was
probative of his own desire to spend more time with A.D. in
Boston, as well as Father’s grievances regarding the
inconveniences of traveling to and from Philadelphia….
...
The weight afforded to the child’s preference as to the
custodial parent in the context of a custody proceeding varies with
the age, maturity, and intelligence of that child, together with the
reasons given for the preference. [B.C.S. v. J.A.S.], 994 A.2d
600 (Pa.Super. 2010); [Gianvito v. Gianvito], 975 A.2d 1164
(Pa.Super. 2009). Here, both parties were able to paint a vivid
picture of A.D. and discuss A.D.’s level of maturity….
The record clearly indicates that Father and Mother love A.D.
and enjoy spending time with him, and both parties were able to
eloquently articulate their wishes and concerns during the
hearing….
Based on the testimony presented, the court stated it
assumed A.D. would have said that he wanted to fly to Boston as
an unaccompanied minor and that he was mature enough to do
so. N.T. p. 72, l. 24 – p. 73, l. 2. However, the “well-reasoned
preference of the child” pursuant to 23 Pa.C.S.[A.] § 5328(a)(7)
is not an controlling factor, particularly in an situation where a
child has expressed a desire that was determined not to be in his
best interest. [Altus-Baumhor v. Baumhor], 595 A.2d 1147,
1150 (Pa.Super. 1991). In its rationale, the court stated:
[]I find that it is not in [A.D.]’s best interest to fly as
an unaccompanied minor because of safety
concerns. He is eight years old. He cannot handle a
situation where a flight would be diverted. He cannot
handle a situation where he could be sitting on a
tarmac by himself.
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If there’s an emergency on the flight, all of the flight
attendants would be dispatched to care for all of the
passengers on the flight and to handle the
emergency….
But this isn’t about [A.D.] being ready. This is about
[A.D.] being too young to be able to handle a situation
and protect himself. I think that the very idea that we
think that at age eight, a child can protect him or
herself is dangerous and it’s impractical. I think, Dad,
you yourself said, ‘I would be okay with a babysitter
flying with my son, as long as it’s someone who is
vetted.’ Your son would be on that flight with a
complete stranger, surrounded by complete
strangers.
He could be sitting next to a sex offender, and neither
of you would be aware of it.[]
N.T., p. 72, l. 14 - p. 73, l. 16 (emphasis added).
The decision not to interview A.D. was not an unreasoned
one. The court determined that retrieving A.D. from school would
not be in his best interest in light of the narrow scope of the issue.
There is no statutory rule or decision of law that requires a
trial court to interview a child in a custody hearing. It is evident
from a review of the testimony, the exhibits, and the memoranda
submitted by counsel that the court was able to render the
appropriate ruling in A.D.’s best interest based on the evidence
presented. In addition, the Pennsylvania Rules of Civil Procedure
read that the court may interview a child, whether or not the
subject of the action, in open court or in chambers, and state that
a child who is the subject of an action for custody, partial custody,
or visitation is not required to attend a hearing before the court
or a conference, unless otherwise directed by the court. Pa.R.C.P.
1915.11(b) and (c) (emphasis added). The plain language of Rule
1915.11 makes interviewing a child in a custody proceeding
optional.
In prioritizing a child’s best interest, there are several
instances that would warrant keeping a child away from court
when the child’s participation is not necessary. The stress and
emotion involved in coming to court to testify, even for an adult,
particularly about situations involving children and their parents,
could have an adverse effect on a child. Placing a child in a
position of feeling like he or she has to choose or opine on even a
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discrete custody matter could aggravate relationships to the
detriment of the child’s best interest. “[T]he presence of a child
in court is not always necessary or desirable. The experience may
be traumatic and disruptive. Consequently, the child should not
be required to attend a hearing or conference in every case.” See
Domestic Relations Committee Explanatory Comment to Pa.R.C.P.
1915.11 (1991).
The court, furthermore, finds the case of [Bovard v.
Baker], 775 A.2d 835 (Pa.Super. 2001) to be distinguishable….
The circumstances in the present case differ from those in
[Bovard]. [Bovard] involved an entire custody determination of
four children, the youngest of whom was ten years old. The
present case involves a single eight-year-old child with no other
siblings (who hypothetically may or may not have been able to
accompany him on a flight). Moreover, the issue here was not
whether the child preferred to live with a particular parent, nor did
the issue here involve a ruling that would materially alter the
current custody arrangement. On the contrary, the court here
decided a discrete and narrow issue ancillary to an otherwise-
undisputed custody arrangement pertaining to a single eight-
year-old child.
It should be noted that several cases involving parties with
shared legal custody who litigated issues that could alter their
child’s daily routine did not require testimony from the children at
issue. [See, e.g.] [Staub v. Staub], 960 A.2d 848 (Pa.Super.
2008) (deciding between public and home schooling); [Fox v.
Garzilli], 875 A.2d 1104 (Pa.Super. 2005) (ordering that the
children attend school in the mother’s school district); [Dolan v.
Dolan], 548 A.2d 632 (Pa.Super. 1988) (deciding between public
and private school).
The factual findings and the conclusions of law drawn by the
court as a result of this hearing did not require the court to hear
testimony from A.D. It was apparent that allowing A.D. to fly as
an unaccompanied minor was not in A.D.’s best interest. As this
issue is within the discretion of the trial court and not
unreasonable in light of the evidence presented, no abuse of
discretion occurred….
T.C.O. at 7-11 (some citations omitted).
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Father, however, indicates that interviewing Child would have given the
trial court a perspective into Child’s physical appearance, as well as his
maturity level and preference. Father’s Brief at 13. Father observes that the
court was obviously concerned with Child’s physical appearance, in particular
height and weight, related to his traveling as an unaccompanied minor, as the
court inquired as to these details of Mother and Father. Id. at 14-15.
Moreover, Father notes both Mother and Father testified as to Child’s maturity
level and preference, although each offered conflicting testimony. Father
states:
Although the court is not required to interview the child
under Pa.R.C.P. 1915.11(b) and (c), in this situation, a simple
interview of A.D. would have given the trial court an objective
view of A.D.’s height and weight to better understand his
perceived physical appearance. Further, A.D.’s wishes constitute
an important factor that the trial court should have considered,
while simultaneously gaining insight as to A.D.’s disputed maturity
level.
Id. at 13. We disagree.
We conclude the trial court did not abuse its discretion in electing not to
interview Child. The trial court’s findings are supported by competent
evidence of record, and it set forth ample reasons for its decision not to
interview Child. See T.C.O. 7-11; E.R., 129 A.3d at 527.
We next consider Father’s remaining issues challenging the trial court’s
consideration of record evidence and inferences therefrom together as we find
them interrelated.
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The trial court made it clear that it reviewed the airline policies as to
unaccompanied minors presented by Father, and the court acknowledged
Father’s testimony as to his research, experiences, and conversations. T.C.O.
at 13-14. Finding it not currently in Child’s best interest to fly as an
unaccompanied minor, as supported by the evidence of record and reasonable
inferences therefrom, the trial court stated:
The record supports a reasonable inference that unexpected
emergencies and safety concerns do exist in spite of airline
protocols for unaccompanied minors. Although Father believes
that the benefits of A.D.’s traveling to and from Boston (rather
than Father traveling to and from Philadelphia) outweigh any
potential risks or dangers of A.D. flying as an unaccompanied
minor, the court must consider the evidence presented and may
also consider other common-sense and real-world scenarios that
may impact child safety. Father’s unwavering faith and optimism
in airline equipment and employees are supported neither by the
record nor common sense. Any mechanical malfunctions, defects
or inclement weather that could delay or re-route a flight, or
worse, be life-threatening, are certainly within the realm of
possibilities and are not uncommon on flights. Even assuming the
flight attendants are well-versed regarding in-flight emergency
procedures, they have several duties and are responsible for the
safety of everyone on the airplane, not just A.D. In the event of
a crisis, it is not feasible to believe airline employees would be
able to provide adequate attention to A.D. amongst a frenzy of
passengers, or be specifically designated to cater to A.D.’s well-
being. Moreover, neither the individuals seated next to A.D., nor
any other passenger on the airplane, can be “vetted” by Father or
Mother – a process that Father himself would require before
allowing A.D. to fly with a baby sitter or third party. N.T., p. 32,
l. 24 – p. 33, l. 3. While Father would require the “vetting” of a
babysitter or third party before that person could fly with A.D., he
expressed no concern about a stranger – who could very well be
a hardened criminal or pedophile – sitting on either side of A.D.
on an airplane.
Both parties testified extensively on direct examination and
cross-examination, and answered questions asked by the court.
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While Father steadfastly believes his concerns are addressed by
airline protocols, Mother clearly expressed concerns about the
inherent dangers associated with A.D. flying as an unaccompanied
minor. The court had a duty to assess whether allowing A.D. to
fly as an unaccompanied minor would be in his best interest. In
so doing, the court need not ignore concerns about safety and
common sense dangers associated with a minor traveling alone.
Based on the evidence presented, the court found no compelling
reasons to modify the current custody Order. In hearing the
testimony, the court made a factual determination and drew
reasonable inferences from the evidence, and no abuse of
discretion occurred.
T.C.O. at 14-15.
Father, however, asserts the trial court abused its discretion and erred
when it failed to consider evidence of record, precluded testimony related to
the evidence of record, and made findings contrary to the evidence of record.8
Father’s Brief at 17-20. Father contends, “Here, a plain reading of the
evidence submitted by Father, specifically the six different airline policies on
flying as an unaccompanied minor, show that the trial court’s determinations
were contrary to the evidence of record.” Id. at 17.
Specifically, Father argues that the trial court misinterpreted American
Airlines’ (“AA”) policy when it noted that Boston, Massachusetts was not on
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8 Father appears to abandon any claim as to preclusion of testimony within
his actual argument, resulting in waiver. See In re M.Z.T.M.W., 163 A.3d
462, 465-66 (Pa.Super. 2017). Moreover, we note the statement of counsel
for Father, “Your Honor, I’d like to mark as exhibits and move into evidence
the other airlines – what the policies are. And I don’t mean to ask questions
about the exhibits, but I’d like to have the exhibits marked and moved.” Notes
of Testimony (“N.T.”), 1/25/18, at 30.
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the list of approved cities for children eight-to fourteen-years-old to travel on
connecting flights through.9 Id. at 17-18. Further, Father suggests that the
court’s statement, “Even assuming the flight attendants are well-versed
regarding in-flight procedures, they have several duties and are responsible
for the safety of everyone on the airplane, not just A.D.,”10 is speculation and
not supported by the United Airlines (“UA”) policy offered. Id. at 18-19.
Father asserts:
The trial court’s determination is clearly contrary to the
evidence of record because the UA Policy alone is clear that flight
attendants do have specific responsibilities regarding an
unaccompanied minor on the flight. There was no reason for the
trial court to speculate as to the flight attendants’ responsibilities
when they are clear on the face of the UA Policy, as well as the
other airline policies of record.
Id. Additionally, Father challenges the court’s statement, “In the event of a
crisis, it is not feasible to believe airline employees would be able to provide
adequate attention to A.D. amongst a frenzy of passengers, or be specifically
designated to cater to A.D.’s well-being.”11 Id. at 19-20. Father looks to the
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9 Upon review, the court’s statement in its Opinion of AA’s unaccompanied
minor policy, T.C.O. at 13 n.6., appears to be an accurate restatement of the
policy. See Exhibit 1. Moreover, there is nothing to suggest that the trial
court misinterpreted or misapplied it in any way.
10This is stated by the trial court in its Opinion and noted in the section quoted
above. T.C.O. at 14.
11This is stated by the trial court in its Opinion and noted in the section quoted
above. T.C.O. at 14-15.
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policies of JetBlue and Southwest Airlines (“Southwest”) as to seating,
boarding, and rules and/or instructions. Id.
Lastly, Father further argues that the trial court erred when it considered
evidence that was not part of the record and made findings based on this non-
record evidence. Father’s Brief at 20-23. Father opposes the trial court’s
utilization of “real-world scenarios” in place of evidence of record. Id. at 21.
He states:
The case law is clear, and, like in [Ney v. Ney, 917 A.2d 863, 866
(Pa.Super. 2007)],12 the trial court cannot transpose
independently created ‘real-world scenarios’ for evidence that the
parties entered on the record. Despite this, the trial court made
at least two improper determinations based on ‘real-world
scenarios’ that the trial court considered rather than from the
evidence of record.
Id. Specifically, Father highlights the trial court’s statement, “Any mechanical
malfunctions, defects, or inclement weather that could delay or re-route a
flight, or worse be life-threatening, are certainly within the realm of
possibilities and are not uncommon on flights.”13 Id. at 21-22. He recounts
his testimony of only experiencing one diversion in his time flying between
Boston and Philadelphia, and Southwest’s policy where it references
____________________________________________
12 Ney involved a child support matter where the trial court improperly
considered evidence obtained from its own internet research as to
employment availability. Ney, 917 A.2d at 866-67.
13This is stated by the trial court in its Opinion and noted in the section quoted
above. T.C.O. at 14.
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availability to answer telephone calls due to flight irregularity. Id. at 22.
Father also points to the court’s indications that the child could be seated next
to a criminal or a sex offender.14 Id. Father asserts,
[T]here are infinite situations in which A.D. could be in proximity
to a sex offender, pedophile, or ‘hardened criminal’, such as
anytime A.D. is in a public setting (i.e., a movie theater). It is
improper for the trial court to use this possibility as a factor in
making this determination, especially because the airline policies
directly address where an unaccompanied minor sits on the plane
and neither party submitted this as a concern for this situation.
Id. at 22-23.
Upon review, we find no abuse of discretion. The trial court engaged in
a detailed analysis of Child’s best interest as it relates to flying as an
unaccompanied minor. Its findings are supported by competent evidence of
record, and its conclusions are not the result of an error of law or
unreasonable. E.R., 129 A.3d at 527; C.R.F., 45 A.3d at 443. As such, we
do not disturb them.
We observe that, while Father recounted only one diversion, he admitted
occasional delays, although not over thirty minutes, with regard to his travel
between Boston and Philadelphia. N.T. at 30. Further, only the Southwest
policy indicates that they “will not transport [unaccompanied minors] on
flights that may be diverted or cancelled due to inclement weather or other
____________________________________________
14This is stated by the trial court on the record at the conclusion of the
hearing, N.T. at 73, as well as in its Opinion and noted in the section quoted
above, T.C.O. at 15.
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occasional irregularities.” Exhibit 6 at 1. In addition, the Southwest policy,
while indicating that a flight attendant will check on an unaccompanied minor
“periodically” during a flight, specifically provides that this is “as duties allow,”
and that a flight attendant “will not continuously monitor” an unaccompanied
minor. Exhibit 6 at 2. Although the UA policy provides similarly for periodic
check, see Exhibit 2 at 3, the other policies are silent as to the flight process.
Moreover, despite several policies addressing recommended or preferred
seating in general terms, only JetBlue provides for specific seating for
unaccompanied minors. See Exhibit 3 at 2. As such, the court’s inferences,
or reliance on “real-world scenarios” and/or “common sense,” are reasonable
in this case.
For the foregoing reasons, we affirm the order of the trial court and deny
Father’s motion to suppress Mother’s brief.
Order affirmed. Father’s motion to suppress Mother’s brief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/18
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