L.A.D. v. E.J.A. ( 2014 )

J-S67015-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
L.A.D., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
E.J.A., :
:
Appellee : No. 1042 WDA 2014
Appeal from the Order entered May 30, 2014,
Court of Common Pleas, Erie County,
Civil Division at No. 14723-2004
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 10, 2014
L.A.D. (“Mother”) appeals pro se from the May 30, 2014 order entered
by the Erie County Court of Common Pleas denying her request to modify
the custody order pertaining to D.A., born in October of 2004 (“Child”),
applicable to Mother and E.J.A. (“Father”). After careful review, we affirm.
The trial court provided the following summary of the procedural
history of this case:
Since the 2004 initiation of this case, the Court has
entered eight custody orders. Prior to the Child
reaching school age, the parties maintained
essentially an equal shared custody arrangement.
Thereafter, an August 11, 2010 Order of Court set
forth the parties consent agreement. Pursuant to the
August 11, 2010 order, the parties alternated time in
the summer, but[] during the school year, the Child
was in Father’s custody overnight during the week,
one full weekend per month and one weekend
overnight during another weekend of the month
*Former Justice specially assigned to the Superior Court.
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while Mother exercised custody two evenings per
week pus the remaining weekend time.
Since 2010, the parties have filed a petition for
modification each year. The three most recent
petitions resulted in full custody trials before the
court. Specifically, on July 27, 2011, Mother filed a
Complaint for Modification of Custody Order
requesting primary custody and alleging that she
could best meet the developmental needs of the
Child. Following a hearing, the Honorable Daniel J.
Brabender, Jr. issued a December 12, 2011 Order
maintaining a shared legal and physical custody
arrangement for the parties. The December 12, 2011
Order established a schedule which maintained the
weekend schedule from the parties 2010 consent
agreement but altered weekdays such that Mother
obtained one overnight period of custody during the
week in addition to one evening period of custody.
Just four months later, on April 20, 2012, Mother
filed another Complaint for Primary
Residence/Modification of an Existing Order alleging
that it would serve the Child’s best interest to be in
her primary custody due to continued lack of
communication with Father and Mother’s residence is
permanently in the Child’s school district.[FN]
Following a hearing, Judge Brabender issued a
September 13, 2012 Memorandum Opinion and
Order maintaining the status quo. Mother appealed
Judge Brabender’s Order. By a June 19, 2013
Memorandum Opinion, the Superior Court affirmed
the September 13, 2012 Order.
[Two months later], on August 26, 2013, Mother
filed a Complaint for Primary Residence/Modification
of an Existing Order alleging the Child’s best interest
would be served in her primary custody due to
continued lack of communication with Father,
Mother’s residence in the Child’s school district,
Mother's availability, and use of the Child for
financial purposes. After a May 28, 2014 hearing,
this Court issued its May 30, 2014 Order which, with
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regard to periods of custody, only altered the
weekend custody schedule. Specifically, during the
school year, each party has custody of the Child
every other weekend. The only other substantive
changes to the order were the addition of a provision
that each party attend individual counselling and
that, until further order of court, neither party file a
custody modification or contempt petition without
first seeking leave of court. Mother, on June 27,
2014, filed her Notice of Appeal.
___________________________
[FN]
Mother, on April 30, 2012, also filed a Petition
for Contempt of Custody Order alleging that Father
did not allow her period of custody on April 28, 2012.
Following a hearing, the Petition for Contempt was
denied.
Trial Court Opinion, 6/28/14, at 1-3 (footnote in the original).
Mother raises the following issues for our review, recited verbatim and
without correction from the statement of questions involved section of her
appellate brief:
1. DID THE COURT ERR BY PREJUDICED BY THE
COURT’S SPECIFIC ACTIONS?
a. DID THE COURT ERR IN DETERMINING THAT
THE PLAINTIFF’S CLAIM WAS WITHOUT MERIT IN
SEEKING PRIMARY RESIDENCY?
b. DID THE COURT ERR TO NOT HEAR
TESTIMONY FROM PLAINTIFF’S WITNESSES AND
TAKE CONSIDERATION THE PRETRIAL NARRATIVE
WAS CIRCUITED MORE THAN ONCE IN A TIMELY
MANNER?
c. DID THE COURT ERR TO MODIFY AND MEND
SOME OF THE SHARED HOLIDAY TIME FOR A
MORE STABILITY AND LESS MOBILE OF OUR
CHILD?
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d. DID THE COURT ERR IN MENDING THE
CURRENT COURT ORDER TO REMOVAL OF FAMILY
WIZARD AND CO= PARENTING?
e. DID THE COURT ERR IN AND ABUSE
DISCRETION TO RECEIVE EXHIBITS AT THE
TRIAL, dated for May 28th, 2014?
f. DID THE COURT ERR IN ADDRESSING THE
COMMUNICATION FROM PAGE 2 LINE I OF
CURRENT CUSTODY ORDER?
g. DID THE COURT ERR WITH AN ADDITION OF
PAGE 3 NUMBER 7 OF COURT ORDER- UNTIL
FURTHER ORDER OF COURT: NEITHER PARTY
SHALL FILL A CUSTODY MODIFICATION OR
CONTEMPT PETITION WITHOUT FIRST SEEKING
LEAVE OF COURT TO DO SO?
2. The Court erred with acknowledgement in
consideration of the different factors for the decision
based on the best interest of the child’s moral,
mental, emotional, physical and spiritual
development.
a. Did the Court err with withdrawing the
suspicion of drug use around the child and dismiss
the drug testing to help hold the child’s wellbeing
accountable?
b. DID THE COURT ERR IN THAT PLAINTIFF
BROUGHT FORTH IN THE SAID HEARING AND
UTILIZED SEVERAL ATTEMPTS THROUGH CO-
PARENTING, CONCERN IN OUR CHILD’S SCHOOL
AND OUT OF SCHOOL ACTIVITIES OF DECISIONS
THAT NEEDED TO BE ADDRESSED AND PROCEED
TO NOT BE FULFILLED FOR THE CHILD[?] IN
TURN GOES IN HAND OF PA.C.S.A. 5328(A)(4)[.]
c. DID THE COURT ERR UPON RECEIPT OF THE
CURRENT CUSTODY ORDER, THE PLAINTIFF HAS
BEEN CONTACTED BY THE CHILD’S 3rd GRADE
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SCHOOL TEACHER STATING THAT THE CHILD IS
STILL BEHIND IN A GRADE LEVEL OF READING[?]
i. DID THE COURT ERR IN KNOWING THE LACK
OF COMMUNICATION AND THE DIFFICULTY OF
DECISIONS BETWEEN BOTH PARTIES OF THE
CHILD CONTINUES TO BE NOT ADDRESSED
FOR THE BEST INTEREST OF THE CHILD AND
THE NEEDS OF OUR CHILD AFTER THERE HAVE
BEEN MORE THAN SEVERAL ATTEMPTS TO BE
ADDRESSED UTILIZING DIFFERENT METHODS
FOR A SOLUTION FOR THE SAKE OF OUR
CHILD.
3. DID THE COURT ABUSE IT’S DISCRETION IN
MAKING A NON SUBSTANTIVELY MODIFY TO THE
CUSTODY ORDER WITHOUT HOLDING THE
EVIDENTIARY PROCEEDING?
Mother’s Brief at 6-7.1
In total, Mother raises 14 questions for this Court to address. Her
argument section of her appellate brief, however, is less than one-half of a
page, includes no citations to the record, and does not include any
discussion about any of the issues raised.2 As we have previously stated,
1
Mother did not paginate her appellate brief. For ease of reference, we
assigned page numbers beginning with the first page after the cover.
2
We note, however, that Mother appears to have abided much of the
information we included in the Memorandum deciding her last appeal. In the
pro se appellate brief Mother filed in that appeal, she failed to include a
statement of questions involved, a summary of her argument, or citation to
any relevant legal authority. See L.A.D. v. E.J.A., 1585 WDA 2012, *5 (Pa.
Super. June 19, 2013) (unpublished memorandum). She has remedied
those deficiencies in large part in her brief in support of the current appeal.
We further note that Mother included an additional section in her appellate
brief entitled “Statement of the reasons to allow an appeal to challenge the
discretionary aspects of a sentence,” wherein she restates the issues raised
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“The Rules of Appellate Procedure state unequivocally that each question an
appellant raises is to be supported by discussion and analysis of pertinent
authority. Appellate arguments which fail to adhere to these rules may be
considered waived, and arguments which are not appropriately developed
are waived.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014)
(internal citations omitted); see also Pa.R.A.P. 2119(a) (requiring that the
argument “be divided into as many parts as there are questions to be
argued; and shall have at the head of each part--in distinctive type or in
type distinctively displayed--the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent”), (b)
(requiring citations to relevant authority and including the principle for which
they are cited), (c) (requiring citations to the record), (d) (requiring a
synopsis of all the evidence on point relating to a claim that the trial court
erred by finding or refusing to find a fact).
Generously reviewing Mother’s argument, we find that she preserved
only one question, encompassed in issues (1)(a) and (2) stated above –
whether the trial court abused its discretion by denying her petition for
modification of the custody order and its application of the custody factors
in the statement of questions involved section of her brief and provides a
sentence or two explaining the reason she raised each issue. See Mother’s
Brief at 13-16. Although we appreciate Mother’s attempt to be thorough,
this section is only required (and applicable) in cases wherein a defendant
challenges the discretionary aspects of his criminal sentence on appeal. See
Pa.R.A.P. 2119(f).
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contained in section 5328(a) of the Child Custody Act. See Mother’s Brief at
17. We begin by stating our standard of review:
In reviewing a custody order, our scope is of the
broadest type and our standard is abuse of
discretion. We must accept findings of the trial court
that are supported by competent evidence of record,
as our role does not include making independent
factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we
must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand. However, we
are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the
test is whether the trial court's conclusions are
unreasonable as shown by the evidence of record.
We may reject the conclusions of the trial court only
if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
With any child custody case, the paramount concern
is the best interests of the child. This standard
requires a case-by-case assessment of all the factors
that may legitimately affect the physical, intellectual,
moral and spiritual well-being of the child.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (citation omitted).
Section 5328(a) of the Child Custody Act sets forth the factors that a
trial court must consider when ordering any form of custody, giving greater
weight to factors affecting the safety of the child:
(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
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adequate physical safeguards and supervision of the
child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic
violence where reasonable safety measures are
necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate
with one another. A party's effort to protect a child
from abuse by another party is not evidence of
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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).
The trial court found that factor 2 (present or past abuse), factor 2.1
(involvement with child protective services), and factor 6 (sibling
relationships) were not relevant in this case.3 Trial Court Opinion, 7/28/14,
at 4. Furthermore, the trial court stated that because the court had so
recently reviewed the case at the modification proceeding the previous year,
it limited testimony to “new information since the [c]ourt’s last involvement
with the parties,” to which no objection was made by either party. Id. As
the parties presented no evidence regarding factors 3 (the parental duties
performed by each party), 5 (availability of extended family), or 11
(proximity of the parties’ residences), the trial court made no new findings
with respect to these issues. Id. at 4-5. The trial court found that the
remaining factors weighed in favor of maintaining the status quo. There was
no concern regarding most of the factors, as both encouraged contact with
3
Our review of the record reveals that Child has two teenaged half-siblings
on Father’s side with whom, according to Father, Child has a close
relationship. See N.T., 5/28/14, at 33-34. This omission does not alter our
decision.
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the other parent; Child had improved his academic performance; testimony
revealed that Child was happy with the custody arrangement; neither made
attempts to turn Child against the other parent; both maintain a stable and
loving environment for Child; and there are no concerns about the mental or
physical conditions of either parent. Id. at 5-9. Although Mother was
reporting troubling behaviors by Child while he was in her care, including
aggressiveness and suicidal talk, Father had not observed the same
behaviors, and found that Child is able to deal with frustration better than
before. Id. at 5-6.
The trial court observed a high level of conflict between Mother and
Father, aggravated by the nearly continuous involvement of the courts, and
believes that neither Mother nor Father appreciate the detrimental impact
this is having on Child. Id. at 6-7. Mother has brought serial petitions for
modification of the custody order, concomitantly missing half of the
scheduled co-parenting sessions, raising questions in the trial court’s mind
regarding Mother’s commitment to co-parenting Child with Father. Id. at 8.
Furthermore, the trial court found that “since the last custody order, Mother
has relinquished to Father thirteen overnights of her periods of custody, plus
sixty hours of daytime custody,” which cast doubt about Mother’s ability to
care for Child or make appropriate arrangements for Child’s care. Id. at 7.
Ultimately, the trial court concluded that modifying the custody order
to make Mother the primary custodian of Child was not in Child’s best
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interest. It found the evidence supported finding that Child was happy and
settled in the established custody routine and actually exhibited better
behaviors in Father’s care than in Mother’s care. Id. at 7. The trial court
further granted Father’s request to alternate weekends of custody with
Mother,4 finding that because
this is only a minor change to the custody schedule
and that the Child does not have the type of
behavioral outbursts in Father’s care that he displays
in Mother’s care, the [trial c]ourt believes that such a
change will not jeopardize the Child’s stability.
Moreover, the [trial c]ourt notes that Father engages
the Child in a number of activities while the Child is
in his care, clearly taking advantage of the quality
time. Furthermore, Father reports that the Child
adjusts well, and is happy, when Father obtains
extra periods of custody due to Mother’s lack of
availability.
Id. at 7-8. Although Mother expressed concern about Father possibly using
drugs, the trial court found that Mother’s claim lacked “explanation or proof,”
found credible Father’s denial that he or any member of his household used
drugs, and determined that drug testing was not warranted. Id. at 9.
The evidence and testimony presented at the hearing supports the trial
court’s decision. The parties’ co-parenting counselor, Michael Bloesser
4
The weekend custody schedule at the time of the modification hearing was
as follows: Weekends 1 and 2 – Child in Mother’s care from Friday after
school until 5:00 p.m. Sunday; Weekend 3 – Child in Father’s care from
Weekend 2 – Child in Father’s care from 5:00 p.m. Friday until 5:00 p.m.
Saturday and in Mother’s care from 5:00 p.m. Saturday until 5:00 p.m.
Sunday; Weekend 4 – Child in Father’s care from Friday after school until
5:00 p.m. Sunday.
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(“Bloesser”), testified as an expert witness in the area of co-parent
counseling, and Mother and Father also provided testimony regarding how
things have been going and/or changed since the last custody trial.5
Bloesser, who has been working with the family since October of 2011,
observed Child to be adjusted to the current custody schedule and “happy
with it.” N.T., 5/28/14, at 7, 16. Mother had only attended five of the at
least ten scheduled sessions, making it difficult for Bloesser to work with the
parties on their communication. Id. at 11. It was Bloesser’s opinion that
the constant litigation, initiated by Mother, was detrimental to their
relationship and made it difficult to co-parent Child. Id. at 9, 13. He
5
Our review of the record reveals that the modification proceeding was
unorthodox to say the least. The trial court, with Mother’s agreement,
permitted Father to call Bloesser out of turn, but denied Mother the
opportunity to cross-examine the witness, instead calling Mother and Father
to tell the judge what was going on and what had changed since the last
custody trial held the year before. N.T., 5/28/14, at 20. The court did this
because there had been a lot of litigation in the case, and it wanted to limit
the testimony to why Mother believed the custody schedule should change
and why Father believed that it should not be changed. Id. at 21, 26.
Furthermore, at Father’s counsel’s request, the trial court “sanctioned”
Mother for failing to timely file her pretrial narrative, precluding Mother from
calling any of the witnesses listed thereon. The trial court defends this
decision by stating that Mother was ordered to file her pretrial narrative by
May 14, 2014, and Mother failed to do so until May 16, 2014, two days
beyond the ordered deadline. Trial Court Opinion, 7/28/14, at 11. The
record reflects, though, that the modification hearing was continued twice
before the May 28th date and that Mother had filed an identical pretrial
statement on both December 9, 2013 and February 21, 2014. However, as
Mother neither objected to the trial court’s determinations nor presented any
argument on appeal addressing these issues, she is due no relief.
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testified that the parties are able to successfully resolve issues with Child
when there are no “court appearances looming[.]” Id. at 17.
Mother testified that Child has experienced behavioral outbursts and
academic problems, which have “been continually going on through the last
couple [of] years.” Id. at 21. The only new concern Mother testified to was
her “suspicion that there has been drugs involved on the father’s side.” Id.
at 22. She presented no proof through her own testimony or indication that
another witness could confirm her belief. Id. We note that this concern was
not listed on her pretrial narrative, and she did not state that any witness
she planned to call would testify that Father or any of his friends or family
members responsible for Child’s care were using drugs. See Mother’s
Pretrial Narrative Statement, 12/9/13, 2/21/14, 5/16/14.
Father testified that he does not have concerns about Child’s academic
performance – that Child’s teacher called him in March and let him know
that Child is performing at grade level in his reading. N.T., 5/28/14, at 26-
27. He presented Child’s report card for the third quarter of the 2013-2014
school year and testified that it showed “constant improvement.” Id. at 27-
28. According to Father, Child is excited to go to school. Id.
Father also testified that he has not seen any worsening of Child’s
behaviors in the last year. Id. at 29. Child continues to see his therapist for
his problems with anxiety. Id. at 29-30.
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According to Father, Mother has relinquished 13 overnights and 60
hours of other custodial time with Child to him and that Child is happy when
he knows he is going to be spending more time at Father’s house. Id. at
37-38. Regarding Mother’s allegation that Father uses drugs, he testified
that he has “been sober for over twelve years,” and denied that he or any
friend or family member responsible for Child’s care uses drugs. Id. at 38.
As the evidence of record supports the trial court’s findings, we find no
abuse of discretion in its denial of Mother’s request for primary custody of
Child. See J.R.M., 33 A.3d at 650. We therefore affirm the trial court’s
order.
Order affirmed.
Fitzgerald, J. joins the Memorandum.
Mundy, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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