M.J. v. S.J. ( 2014 )

J-A27044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.J., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
S.J.,
Appellant No. 637 WDA 2014
Appeal from the Order entered March 26, 2014,
in the Court of Common Pleas of Allegheny County,
Civil Division, at No(s): FD 07-009307-004
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 21, 2014
S.J. (“Father”), pro se, appeals from the Order awarding sole legal
custody of the minor child, Su.J. (“Child”) to Child’s mother, M.J. (“Mother”).
We affirm.
The trial court set forth the factual background and procedural history
of this appeal as follows:
Father and Mother were married on February 5, 1994[,]
and had two children — Sa.J. (DOB 8/11/94) and Su.J. (DOB
10/9/00). Mother filed [a Complaint] for divorce in December
2007, with claims for custody, support and equitable distribution.
Since then, the docket in this matter has been extremely active.
In recent years, the litigation has centered most heavily around
Su.J.; Sa.J. has been emancipated for some time. The primary
issue in this latest appeal is legal custody. The roots of this
specific matter date back 18 months.
In September 2012, Mother filed a [P]etition for
modification of the parties’ custody [O]rder. It was here where
Mother first averred that Father was impeding her efforts to get
Su.J. counseling. That matter was set before [] Hearing Officer
[Laura Valles (“Hearing Officer Valles”)], who heard the
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[P]etition in late November 2012. In early December 2012, []
Hearing Officer [Valles] ruled, among other things, that the
parents should enroll Su.J. in therapy. See Report and
Recommendation, dated December 4, 2012.
Both parties filed exceptions. One of Mother’s exceptions
was that Father must be required to give the requisite medical
consent to the therapist so that Su.J. could begin treatment. But
before [the trial court] could rule on that exception, Father gave
his consent[,] and so Mother withdrew her contention. See
Order of Court, dated March 21, 2013, at Paragraph 4.
Following the exceptions argument, however, Father revoked his
consent and Su.J. was forced to cease her treatment. When
Mother brought the issue before the [trial court], the [c]ourt sua
sponte ordered a hearing on legal custody. See Order of Court,
dated March 28, 2013. Father appealed [the trial court’s]
scheduling of the legal custody hearing. That appeal was
docketed as 723 WDA 2013.
In the interim, Father and Mother each appealed other
unrelated matters. See 747 & 925 WDA 2013. In August 2013,
Mother retained counsel, and soon thereafter asked the [trial
court] to cancel the legal custody hearing after coming to an
apparent resolution with Father. See Order of Court, dated
August 2, 2013. The armistice was short-lived, however, and
Mother petitioned the [trial court] to schedule a hearing on legal
custody after all. See Order of Court, dated September 10,
2013. The legal custody hearing was scheduled for December 5,
2013.
At this juncture, the procedural history devolves from the
complicated to the complex. [The trial court] discontinued the
legal custody portion of the December 5[, 2013] trial, after
Mother presented her case[,] when Father questioned whether
the [c]ourt had jurisdiction to hear the legal custody matter.[1]
On December 11, 2013, six days after the discontinued trial, the
Superior Court affirmed [the trial court’s] sua sponte scheduling
of the legal custody [O]rder. As it happened, the parties were
before [the trial court] on December 12, 2013[,] for a [M]otion
relating to a tennis tournament, whereby [the trial court]
provided the parties a copy of the Superior Court decision. The
[trial c]ourt asked the parties for potential dates so that the legal
custody portion of the trial could be re[-]scheduled in a timely
fashion. [The trial court] indicated right then that the earliest
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date available was January 28, 2014, otherwise the hearing
would have to wait until March 13, 2014. Father indicated that
he would not be available on the January date.
___________________________________________________________________________
[1]
The trial on December 5, 2013 was a consolidated one: the
[trial court] was to hear matters of contempt of a custody
[O]rder and legal custody. After discontinuing the legal custody
portion. the [trial court] transitioned directly to the contempt
portion of the trial. Father consequently [sic] appealed the [trial
c]ourt’s decision not finding Mother in contempt. See [Trial
Court] Opinion, 117 WDA 2014, dated February 19, 2014, at
page 4. [This Court affirmed the trial court’s decision not finding
Mother in contempt. See S.J. v. M.J., 117 WDA 2014 (Pa.
Super. filed September 30, 2014)]
___________________________________________________________________________
[The trial court] generated two [O]rders on December 19,
2013. The first [O]rder was its ruling from the other half of the
December 5[, 2013] trial, which found that Mother was not in
contempt of the custody [O]rder. The second [O]rder
re[-]scheduled the legal custody hearing for March 13, 2014.
Only after it issued those two [O]rders did [the trial court] learn
that on December 18, 2013[,] Father filed with the Superior
Court an application for re-argument regarding the 723 WDA
2013 appeal (and thus the sua sponte scheduling issue).
On January 22, 2014, Father appealed the December 19,
2013 [O]rder, which found that Mother was not in contempt.[2]
Critically, Father did not appeal [the trial court’s] re[-]scheduling
of the legal custody hearing for March 13, 2014.
On February 19, 2014 the [trial court] filed its 117 WDA
2014 [O]pinion. With the new legal custody hearing
approaching, the [trial court] issued a clarifying [O]rder on
February 27, 2014. The [O]rder provided that the hearing will
be de novo, and that each party has leave to submit an updated
pre-trial statement.[3] The [O]rder also provided that the parties
must make Su.J. available in the event of an in camera
interview. Unbeknownst to [the trial court], Father, the day
before on February 26, 2014, filed with the [Pennsylvania]
Supreme Court a Petition for Allowance of Appeal.4 Among the
contentions Father raised in his Petition for Allowance, not one of
them concerned the sua sponte scheduling of the legal custody
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hearing all the way back in March 2013. On March 13, 2014,
[the trial court] proceeded with the legal custody hearing.
_____________________________________________
[2]
See 117 WDA 2014.
[3]
Both parties declined.
[4]
See 101 WAL 2014.
Trial Court Opinion, 5/28/14, at 1-4 (footnotes and emphasis in original).
At the legal custody hearing on March 13, 2014, Mother, who was
represented by counsel, testified on her own behalf, and was subject to
cross-examination by Father, who was not represented by counsel. The trial
court also questioned Mother, but opted not to question Child. N.T.,
3/13/14, at 81-90, 129.
On March 26, 2014, the trial court entered an Order (“Legal Custody
Order”) awarding Mother sole legal custody of Child, subject to certain
enumerated provisions. Trial Court Order, 3/26/14, at 1. On that same
date, the trial court separately entered its Findings of Fact. See Findings of
Fact, 3/26/14.
On April 21, 2014, Father filed a Notice of Appeal of the Legal Custody
Order, as well as a Statement of Errors, pursuant to Pa.R.A.P. 1925(a)(2)(i)
and (b). In his brief on appeal, Father raises thirty-six issues numbered 1,
2, 3, 4, 5, 6, 7, 8, 8Aa (Health), 8Ab, 8Ac, 8Ad, 8Ae, 8Ba (Extra-curricular
Activities), 8Bb, 8Bc, 8Ca (Educational Matters), 8Cb, 9, 9.1., 9.2, 9.5, 9.6,
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9.7, 9.8, 9.8a, 9.8b, 9.8c, 9.8d, 9.8e, 9.9, 9.10, 9.12, 9.13, 9.14, and 9.15.1
Father’s Brief at 7-11.
In any appeal before this Court, our appellate rules must be followed.
Where the defects in an appellate brief are substantial, the appeal may be
quashed or dismissed. See Pa.R.A.P. 2101. In an appellate brief, “[t]he
argument shall be divided into as many parts as there are questions to be
argued . . . followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). In addition, the “[c]itations of
authorities must set forth the principle for which they are cited.” Pa.R.A.P.
2119(c). “If reference is made to the pleadings, evidence, charge, opinion
or order, or any other matter appearing in the record, the argument must
set forth, in immediate connection therewith, or in a footnote thereto, a
reference to the place in the record where the matter referred to appears….”
Pa.R.A.P. 2119(b). “Appellate arguments which fail to adhere to these rules
may be considered waived, and arguments which are not appropriately
developed are waived. Arguments not appropriately developed include those
where the party has failed to cite any authority in support of a contention.”
Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (citations
omitted); see also In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011)
(stating, “where an appellate brief fails to provide any discussion of a claim
1
Father raised all of these issues in his Statement of Errors.
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with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).
In the Argument section of Father’s appellate brief, he fails to set forth
any discussion with citation to legal authorities to support his contentions of
error raised in issues 1, 4, 5, 8, 8Ab, 8Ac, 8Ad, 8Ae, 8Bb, 8Ca, 8Cb, 9, 9.1,
9.2, 9.5, 9.6, 9.7, 9.8, 9.8a, 9.8b, 9.8c, 9.8d, 9.8e, 9.9, 9.10, 9.12, and
9.14. Thus, he has waived those twenty-seven issues. See In re W.H., 25
A.3d at 339 n.3; see also Lackner, 892 A.2d at 29-30.
In custody cases, 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).
The 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.
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Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
As the legal custody hearing in this matter was held in March 2014,
the Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 5321 to 5340, is
applicable. See C.R.F., 45 A.3d at 445 (holding that, if the custody
evidentiary proceeding commences on or after the effective date of the Act,
i.e., January 24, 2011, the provisions of the Act apply). In any custody case
decided under the Act, the paramount concern is the best interests of the
child. See 23 Pa.C.S.A. §§ 5328, 5338. 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. See 23 Pa.C.S.A. § 5338.
Section 5328(a) of the Act sets forth the best interests factors that the
trial court must consider when determining custody:
(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)(1) and
(2) (relating to consideration of child abuse and involvement
with protective services).
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(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 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.
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(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).2
Following its consideration of the section 5328(a) factors, the trial
court may award the following types of custody:
(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 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).
We now address Father’s remaining claims. In his discussion of issues
2 and 3, Father cites Commonwealth ex rel. Levy v. Levy, 361 A.2d 781
(Pa. Super. 1976), and Billhime v. Billhime, 952 A.2d 1174 (Pa. Super.
2008), as cases involving partiality, prejudice, bias or ill-will on the part of
the trial court judge, to support his contention that the trial court has
exhibited bias in favor of Mother. See Father’s Brief at 18, 20. These cases,
2
Effective January 1, 2014, the Act was amended to include an additional
factor at section 5328(a)(2.1) (providing for consideration of child abuse and
involvement with child protective services).
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however, did not involve such a finding. Thus, Father has failed to support
issues 2 and 3 with applicable case law. See In re W.H., 25 A.3d at 339
n.3; see also Lackner, 892 A.2d at 29-30.3
In issue 6, Father contends that the trial court abused its discretion by
granting sole legal custody to Mother, ignoring that Mother had admitted,
inter alia, physically abusing and torturing Child, as well as her failures to
follow shared legal custody arrangements, ensure Child’s homework was
done, notice that Child needed vision testing, allow Child to be involved in
extracurricular activities, and purchase essential items for Child (ipad, wi-fi
services, school supplies, school lunch). Father’s Brief at 22-23. Initially,
we note that Father fails to discuss the section 5328(a) best interests factors
or relate them to his argument. See id. Although Father cites five cases in
support of his argument, each case that he cites pre-dates the Act. Id. at
22, 24. Moreover, Father failed to develop any argument relating those
cases to the facts of the present case. See Pa.R.A.P. 2119(a). Thus, he has
waived issue 6. See In re W.H., 25 A.3d at 339 n.3; see also Lackner,
892 A.2d at 29-30.
In issue 7, Father cites Murphy v. Hatless, 504 A.2d 917, 920 (Pa.
Super. 1986), for the proposition that an “appellate court is bound to
interfere with the trial court’s determination if the [Legal C]ustody [O]rder is
3
Father also cites Livingston v. Llando, 32 Pa. D. & C.4th 182 (Allegheny
County 1996) in support of issue 3. Father’s Brief at 19. However, we are
not bound to follow decisions of the court of common pleas.
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manifestly unreasonable as shown by the evidence of record.” Father’s Brief
at 24. We find Father has waived issue 7 by failing to include a citation that
supports his contention, i.e., that the trial court has hostility, ill-will, and
prejudice against him, and to support that issue with discussion. See
Pa.R.A.P. 2119(a); see also In re W.H., 25 A.3d at 339 n.3; Lackner, 892
A.2d at 29-30. Father has also failed to provide any references to the
place(s) in the record where the matters referred to appear, in violation of
Pa.R.A.P. 2119(c).
In issue 8Aa, Father argues that the trial court ignored evidence that
Mother has failed to tend to Child’s medical needs, particularly Child’s vision.
Father’s Brief at 26. Father also asserts that Mother failed to have experts
testify as to the mental health of Child, and erred by assuming that Child
was seeing the school counselor because of lack of access to a mental
therapist. Id. at 25. Father cites Ashford v. Ashford, 576 A.2d 1076 (Pa.
Super. 1990), for the proposition that the trial court should have granted a
continuance so that the court could hear testimony from medical experts and
obtain a better sense of the credibility of the witnesses. Father’s Brief at 27.
Our review of the transcript of the March 13, 2014 hearing reveals that
Father did not object to Mother’s failure to present medical experts
regarding Child’s mental health and vision, and failed to request a
continuance so that medical expert testimony could be presented to the trial
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court.4 When a party fails to object in the trial court, he waives the issue on
appeal. See E.D. v. M.P., 33 A.3d at 73, 80 (Pa. Super. 2011); see also
Pa.R.A.P. 302. Thus, we conclude that Father failed to preserve this issue
for this Court’s review by raising the appropriate objection and seeking a
continuance at the custody hearing on March 13, 2014.
In issues 8Ba and 8Bc, Father argues that the trial court failed to
consider evidence of Mother’s refusal to allow Child to participate in
numerous extracurricular activities. Father’s Brief at 27. Father again cites
Murphy in arguing that this Court should interfere with the Legal Custody
Order because it is manifestly unreasonable. Id. at 28. However, Father
failed to include any citations to authority and related discussion that
supports his contentions. See Pa.R.A.P. 2119(a); see also In re W.H., 25
A.3d at 339 n.3; see also Lackner, 892 A.2d at 29-30. Father has also
failed to provide any references to the places in the record where the
matters referred to appear, in violation of Pa.R.A.P. 2119(c). See Father’s
Brief at 27 (where Father merely states that “[t]hese are on record with
petitions and prior instant transcripts.”). Accordingly, these issues are
waived.
In issue 9.13, Father contends that the trial court failed to indicate
why certain evidence was not taken into consideration. Father’s Brief at 33.
4
We note that, at the hearing on March 13, 2014, Father raised an objection
to the hearing, on the basis that the trial court lacked jurisdiction. N.T.,
3/13/14, at 24.
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Nevertheless, Father claims that the trial court dismissed such evidence as
“isolated, stale or de minimus and failed to create a record.” Id. Once
again, Father has failed to provide any references to the places in the record
where the matters referred to appear, in violation of Pa.R.A.P. 2119(c). See
Father’s Brief at 33 (where Father merely states that the trial court’s
“response to this has been addressed in other parts of this brief.”).
Accordingly, this issue is waived.
In issue 9.15, Father contends that the “[trial c]ourt is LYING so [it]
can prove it can do whatever it wants.” Id. at 35 (emphasis in original).
Father also claims “Lies, lies, lies … by [the trial c]ourt” and asserts that “the
trial court is allowed to misuse and abuse of [sic] judicial power to hurt a
child on the basis of [the trial court’s] demonstrated hostility to [] Father for
standing up for his rights as a parent.” Id at 36. Father cites E.A.L. v.
L.J.W., 662 A.2d 1109 (Pa. Super. 1995), for this Court’s scope and
standard of review. Again, we find Father has waived issue 9.15 by failing to
include a citation and related discussion that support his contention that the
trial court has hostility, ill-will, and prejudice against him in support of that
issue. See In re W.H., 25 A.3d at 339 n.3; see also Lackner, 892 A.2d at
29-30.
Similarly, in his Reply Brief, Father complains about the bias of the
trial court judge. Father’s Reply Brief at 3. Father points to comments that
people allegedly have posted to the Internet complaining about the trial
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court judge. See id.; see also id. at Exhibit 1. This matter is not properly
before this Court, as such comments are not part of the certified record.
See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en
banc) (stating that any document which is not part of the officially certified
record is deemed non-existent, and an appellate court is limited to
considering only the materials in the certified record when resolving an
issue).5
In his Supplemental Reply Brief, Father complains about various
Orders that the trial court entered after Father lodged this appeal. Father’s
Supplemental Reply Brief at 1-2; see also id. at Exhibits A-F. Father
asserts that these Orders relate to matters involving Mother’s alleged
contempt of the Legal Custody Order, and are evidence of the trial court’s
bias in favor of Mother. Id. at 1-2. These Orders, and the trial court’s new
rulings on the alleged contempt matters, are not properly before us in our
review of the March 24, 2014 Custody Order, even to demonstrate continued
bias on the part of the trial court judge, as our review is limited to the
certified record. See Preston, 904 A.2d at 7.
5
Father also challenges the brief filed by Mother’s counsel as inadequate to
support the award of sole legal custody to Mother. Father’s Reply Brief at 2-
3. Father misapprehends the burden in this appeal. As the appellant, it is
Father, and not Mother, who bears the burden of demonstrating legal error
or abuse of discretion on the part of the trial court. See Miller v. Miller,
744 A.2d 778, 788 (Pa. Super. 1999) (stating “[i]t is the Appellant who has
the burden of establishing his entitlement to relief by showing that the ruling
of the trial court is erroneous under the evidence or the law.”).
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After a careful review of the record, we conclude that there was ample,
sufficient evidence to support the trial court’s credibility and weight
determinations. C.R.F., 45 A.3d at 443. Moreover, the trial court’s
conclusions do not involve an error of law, nor are they unreasonable in light
of the sustainable findings of the trial court as shown by the evidence of
record. Id. Accordingly, with regard to the preserved issues, we find no
basis upon which to disturb the trial court’s well-reasoned Opinion, and
affirm on this basis.6 See Trial Court Opinion, 5/28/14, at 4-23.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
6
The trial court did not separately address section 5328(a)(2) and section
5328(a)(2.1), but acknowledged that Mother had obtained a prior Protection
From Abuse (“PFA”) Order against Father. See Trial Court Opinion, 5/28/14,
at 19. The trial court explained that it did not factor this PFA Order into its
legal custody decision, as the parties did not raise the PFA Order at the
March 13, 2014 legal custody hearing or present any evidence pertaining to
section 5328(a)(2.1). Id.
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