W.R.K. v. C.A.K. ( 2017 )

J-A07005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
W.R.K., III : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
C.A.K. : No. 1253 WDA 2016
Appeal from the Order Entered July 22, 2016
In the Court of Common Pleas of Butler County
Civil Division at No(s): FC No. 13-90268-C
BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 09, 2017
W.R.K., III, (“Father”), appeals from the order dated July 19, 2016,
and entered on July 22, 2016, which denied his request for sole legal and
physical custody of his two children, M.W.K., a male born in November of
2008 who has autism; and E.M.K., a female born in April of 2010 (“the
Children”). The order also denied Father’s petition to hold C.A.K., the
Children’s mother (“Mother”), in contempt of the custody order entered June
30, 2015. The order, however, granted Father partial relief by prohibiting
Mother from raising pet rats in her household or where the Children would
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*
Retired Senior Judge assigned to the Superior Court.
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have access to them. The order also appointed a guardian ad litem (“GAL”)
to represent the Children.1 We affirm.
The trial court set forth the factual background and procedural history
of this appeal in its opinion entered on June 30, 2015, which we adopt
herein. See Trial Court Opinion, 6/30/15, at 1-17. The relationship
between the parties has been contentious, and Mother has obtained
Protection From Abuse (“PFA”) orders against Father on numerous
occasions. Id. at 1-3. On August 27, 2013, the trial court entered an
amended and continued temporary PFA order, removing the Children as
protected parties. Id. at 2. In an order entered on August 27, 2013, the
trial court set forth the parties’ agreement for shared physical custody of the
Children on a week on, week off basis, and required the parents to
communicate electronically via Our Family Wizard. Id. The order also
scheduled a review conference. Id. Father filed a complaint for divorce on
September 18, 2013.2 Id. On September 23, 2013, Father filed a complaint
for custody. Trial Court Opinion, 6/30/15, at 2.
On March 3, 2014, after a review conference, the trial court entered an
order requiring the parties to continue with shared physical custody on a
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1
Currently, there is no challenge to the trial court’s decision to banish pet
rats from Mother’s home or for the appointment of the GAL.
2
There is no evidence of record showing that a divorce decree has been
entered.
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weekly basis, and setting forth the holiday schedule. Id. at 3. In the March
3, 2014 order, the trial court directed the parties to continue with their
individual counseling and begin joint counseling sessions with Brian Dick,
M.A., L.P.C. Id. The court also ordered the parties to follow the
recommendations of Mark Snyder, M.A., and to begin the approval process
at AERI Behavioral Health Services for M.W.K.’s autism treatment. Id.
On April 17, 2014, by agreement of the parties, the trial court
dismissed the PFA order. Id. at 3. Moreover, the parties reached an
agreement to continue the custody schedule from the March 3, 2014 order,
Father was to undergo mental health evaluations and to follow any
recommendations, the parents were to continue to use Our Family Wizard,
and Mother’s right to file another PFA petition against Father was preserved
if necessary. Id. at 3-4. The parties participated in a review conference
with the custody conciliator on June 2, 2014. Id. at 4. On June 6, 2014,
the trial court entered an order requiring the parties to continue with shared
custody on a weekly basis, to meet with Dr. Bartek and follow his
recommendations, and to attend co-parenting counseling at Family
Pathways. Id. The order also required the parties to continue cooperating
with M.W.K.’s treatment and family-based therapy. Id. The trial court
scheduled another review conference for September 3, 2014. Id.
The procedural history continued as follows:
Father filed a [p]etition for [s]pecial [r]elief on July 31, 2014
alleging that [M.W.K.’s autism] treatments had been delayed
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due to the inability of the parties to communicate, and requested
that the September 3rd review conference be canceled, custody
evaluations be ordered and trial be scheduled. A consented-to
[o]rder of [c]ourt was issued[,] granting Father the right of first
refusal during Mother’s work times. The [trial court] did not
cancel the review conference.
The parties attended the scheduled review conference on
September 3, 2014, after which the [trial court] ordered the
continuation of shared custody and the completion of custody
evaluations by Dr. Bernstein. The parties were ordered to
appear for a [p]retrial [c]onference on January 15, 2015.
A PFA [petition] was filed by Mother on October 29, 2014.
Mother did not list the [C]hildren as protected parties. On
November 6, 2014, the parties entered into an agreement which
was made an [o]rder of [c]ourt. They agreed to only
communicate through Our Family Wizard – not via text or any
other method of communication unless there was an emergency
involving the [C]hildren. They further agreed to resolve future
disputes via a civil contempt filing would be the appropriate
forum rather than filing another PFA [petition]. A separate
[o]rder of [c]ourt was issued on the same day dismissing, by
agreement of the parties[,] the October 29, 2014 temporary PFA
[order].
The pre-trial conference was held on January 15, 2015, after
which Mother’s counsel withdrew, and trial was scheduled for the
16th, 17th, and 18th of March, 2015. Mother obtained new
counsel, and [j]oint [s]tipulations of [f]act were filed on March
10, 2015.
A custody trial was held spanning three days and ending on
March 18, 2015.
Id. at 4-5.
On June 20, 2015, the trial court entered a custody order awarding the
parties shared legal and physical custody and establishing procedures and
schedules with regard to telephone calls with the Children, counseling,
school, and holidays.
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On February 3, 2016, Father filed a counseled petition for contempt
and special relief against Mother, alleging, in pertinent part:
5. Said [Existing] Custody Order granted the parties joint
legal and physical custody. [] Father is unable to make non-
emergency decisions for the health, safety and welfare of the
children unilaterally.
6. [] Mother, by a course of conduct which includes
contempt of court and willful and negligent acts of commission
and omission, has harmed the [C]hildren, placed [the [C]hildren
in danger and placed [M.W.K.] in danger of irreparable harm.
7. The course of conduct mentioned in paragraph six (6)
above includes the following:
(a) [E.M.K.] was bitten by [] Mother’s pet rat. The bite
became infected and she was hospitalized in
Children’s Hospital in Pittsburgh for two nights.
(b) Mother failed to seek medical attention after the rat
bite and failed to notify [] Father of the incident.
(c) Father discovered the bite during his shared custody
time and took the child to the hospital himself.
(d) Mother was aware of the dangers of having pet rats,
having signed a waiver at the pet store. Despite the
known risks to the [C]hildren, Mother still has two
pet rats at her residence.
(e) [M.W.K.] is an autistic child. He has been
prescribed numerous services by professionals since
on or about October of 2014.
(f) Mother failed to take [M.W.K.] to his first grade
orientation on September 13, 2015 thereby delaying
by a month the services the school is providing for
his autism.
(g) Mother failed to appear for an evaluation of [M.W.K.]
by Mark N. Snyder, Licensed Psychologist on October
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21, 2015. A copy of the evaluation by Mark N.
Snyder is attached hereto and made a part hereof.
(h) [] Mother failed to attend a Parent-Teacher
conference at [M.W.K.’s] school regarding [M.W.K.’s]
autism.
(i) [] Mother failed to attend a scheduled meeting at the
Center for Community Resources in Butler regarding
Pennsylvania insurance for autistic children. As a
result of [] Mother’s apparent disinterest, service
providers have failed to agree to provide services.
(j) Due to Mother’s lack of cooperation, [c]o-parenting
counseling only just started on October 17, 2015
with Dr. Gregory Robb [sic], the counselor chosen by
[] Mother.
(k) Dr. Robb [sic] recommended therapy for the
[C]hildren but the same is not scheduled due to []
Mother’s refusal.
(l) Mother has not consistently had the [C]hildren
available for telephone conversations.
(m) On two (2) occasions Mother has failed to appear for
exchange of the [C]hildren. On another occasion []
Mother failed to notify [M.W.K.’s] school that she
was not picking him up. As a result [M.W.K.] was
not placed on the bus and Father had to pick him up.
(n) Mother consistently fails to use the Family Wizard to
reply to Father with information necessary to the
[C]hildren’s welfare.
WHEREFORE, in light[] of the foregoing, [Father] believes that
the [C]hildren are in danger when in Mother’s [c]ustody and are
also placed in danger by the current [o]rder granting the parties
joint legal custody. [Father] thereby requests the following
special relief:
That the Petitioner-Father be granted sole legal and sole physical
custody of the [C]hildren until further order of court.
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Father’s Petition for Contempt and Special Relief, at 1-3.
On March 23, 2016, the trial court held a hearing on the petition for
contempt and special relief. At the commencement of the hearing, Father’s
trial counsel requested permission to present the testimony of Mark Snyder,
a licensed psychologist, via telephone. N.T., 3/23/16, at 2. Mother’s
counsel objected to Mr. Snyder testifying, but not to the admission of his
report. Id. at 2-3. The trial court sustained Mother’s objection, on the basis
that the proffered testimony of Mr. Snyder was more suitable to a custody
modification hearing than to Father’s petition for contempt and special relief.
Id. at 3-8. The trial court stated that, to the extent that Father was seeking
a change in custody because Mother’s way of parenting the Children was
harmful to them, he had failed to file a motion for modification of custody,
and such a request was outside the scope of the petition presently before
the court. Id. at 5. The trial court left open the possibility that Father could
potentially present the testimony of Mr. Snyder later in the hearing, if the
testimony was necessary and relevant. Id. at 6. Father then testified on his
own behalf. Mother’s trial counsel cross-examined Father. The trial court
also questioned him.
At the close of the testimony, Father’s trial counsel stated that, in the
petition for contempt, Father was challenging Mother’s failure to abide by
the paragraphs in the June 30, 2015 custody order directing the parties to
engage in co-parent counseling. N.T., 3/23/16, at 70-73. Father was also
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challenging the provision regarding the time for the one telephone call a day
being between 7:00 p.m. and 7:30 p.m. Id. Father stated that he had the
phone records at home, and that he was not given a phone call from the
Children mostly on Saturday nights, but he lacked specific dates. Id. at 71-
72. With regard to the petition for special relief, Father’s counsel stated that
Father was requesting that there not be any rats in Mother’s household. Id.
at 73-74. Moreover, Father requested special relief with regard to M.W.K.,
seeking treatment of the autistic child in accordance with Mr. Snyder’s
recommendation, which requires cooperation by both parents to have those
services provided and completed. Id. at 74.
On the record, the trial court stated that, in the light most favorable to
Father, there was insufficient evidence as to contempt, so the court was
denying the contempt portions of the petition. Id. at 75. With regard to
special relief, Mother’s counsel agreed that there were no rats in Mother’s
household at that time, so the trial court granted Father’s request to the
extent that there would be no rats as pets in Mother’s household. Id. at 76.
With regard to the cooperation of the parents on services for M.W.K., the
trial court held the petition for special relief open, and directed Father to
provide the court with Our Family Wizard documents between October 1,
2015 and March 30, 2016, over Father’s objection that he lacked the funds
to do so. Id. at 76-79.
The trial court specifically determined:
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[E]ven taking your testimony in the light most favorable to you,
it does not look good. My [o]rder was very specific about co-
parenting. If I had wanted a specific type of co-parenting
provider, it would have been in my [o]rder. It was not your
place to put restrictions on [Mother] from my [o]rder. You don’t
have the authority to do that, at all. And quite frankly, that is a
demonstration of how I believe that you are very controlling in
this case and try to be domineering and controlling as it relates
to [Mother]. And I believe that you use your child’s autism –
you misuse it as a hammer over her, to dominate and control.
Now, I also believe that you truly care about your son and you
want him to have the best services. But you cannot continue to
have poor communication skills, which you have and she has.
You both do. But you cannot continue to wrap your poor
communication skills in an excuse of your son’s autism, and that
is all I heard today. And if you are truly an advocate for your
son, and this wasn’t getting done, I wouldn’t have gotten a
petition in November or December, so that he was in services. I
am extraordinarily disappointed that he is not in services and
getting what he needs.
Now, for those services that are available, and what I
understand from your own testimony is that some of his most
basic needs are not being met because there are not openings.
And, so, even if [Mother] were cooperative – and I’m not saying
she wasn’t. I don’t know that that would be my finding of fact at
all. But I am reserving that until I see the Our Family Wizard
because Our Family Wizard is the best way for me to see how
you two are communicating and whether or not there is a
legitimate disagreement as to how to proceed or whether his is a
failure of you to accept what she is saying. And when I see
those, then I will have a very good – when I see the totality of
them, not just a few pulled for your benefit – which, again, those
weren’t introduced anyway, but I am going to order that they be
introduced.
***
But my job is to make sure that [E.M.K. and M.W.K.] – but I
think things are going fine with [E.M.K.] – but that [M.W.K.] is
getting what he needs to get. This co-parenting counseling – no
excuse for you not being in it. None at all. No excuse for the
delay. And to be honest with you, I have no idea why you are
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not still in it. All I know is, you are supposed to be in it. So, as
far as I am concerned, you are both in contempt. You should be
in it. And you should have been bringing Mr. Lobb in here today
if it was something that was [Mother’s] fault, so to speak. You
didn’t do that.
N.T., 3/23/16, at 80-82.
Finally, the trial court stated that it would be appointing a GAL, which
would cost the parents money every time there was a problem and the GAL
has to become involved. Id. at 81-82.
On June 2, 2016, the trial court entered an order that provided that
M.W.K. would be enrolled in the extended school year for the month of July
2016, and that the parties would cooperate to enroll the Children in
counseling, preferably Summit Academy or alternatively at Kids
Count/Family Psychological Associates in Butler, Pennsylvania.
On July 22, 2016, the trial court entered the following factual findings
based on the evidence admitted at the evidentiary hearing:
In November of 2015, Father noticed [E.M.K.] had a fever and
an issue with one finger. Father later learned [E.M.K.] had been
bitten by Mother’s pet rat when [E.M.K.] stuck her finger through
the bars of the cage. Mother cared for the wound, but failed to
tell Father about the bite. [E.M.K.’s] bite became infected and
required medicine and a hospital stay. [E.M.K.] has made a full
recovery.
[M.W.K.] is a special needs child diagnosed on the autism
spectrum. On October 21, 2015, [M.W.K.] was re-evaluated by
Mark Snyder, who provided detailed recommendations in a
report. Father alleges that due to Mother not attending a
funding meeting in early November, 2015, [M.W.K.] was denied
certain services. However, Father placed no credible evidence
on the record that Mother’s action or inactions caused [M.W.K.]
to be without necessary services. To the contrary, the evidence
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demonstrated that[,] while Father has [M.W.K.’s] best interest at
heart, he is not willing to compromise with Mother or with
service providers resulting in stalled services for [M.W.K.]. Lack
of openings for [M.W.K.] with service providers also created
delay.
Likewise, Father’s insistence that Mother unconditionally agree to
Father’s decisions caused the delay in co-parenting counseling.
This [c]ourt reviewed the Our Family Wizard e-mails and found
no evidence to support Father’s claim that Mother “consistently
fails to use Our Family Wizard.” In fact, the [c]ourt reminds
Father that the Our Family Wizard should not be used to harass
Mother.
There is no credible evidence to support that Mother has placed
either child in danger or risk of irreparable harm. There was no
credible evidence placed on the record regarding Father’s
Petition paragraph 7(b), (k), or (m).
Trial Court Order, 7/22/16.
In accordance with its factual findings, the trial court entered the order
at issue that provided the following:
1. Father’s request for sole legal and physical custody is denied;
2. Mother is not in contempt of [c]ourt regarding daily phone
calls, however, Mother shall assure that the children have no
other activity or distraction during the 7:00 to 7:30 p.m. time
period pursuant to the current [c]ustody [o]rder;
3. Mother is not in contempt of [c]ourt regarding co-parenting
counseling;
4. Mother is not in contempt of [c]ourt for failing to consistently
use or respond to Father on Our Family Wizard;
5. Mother is not in contempt of [c]ourt regarding attending
[M.W.K.’s] first grade orientation, an evaluation by Mark Snyder,
the parent-teacher conference, or the meeting at the Center for
Community Resources;
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6. Mother and Father shall cooperate in ensuring that [M.W.K.]
attends all scheduled medical and therapy appointments,
including but not limited to evaluations so long as the
appointments are timely and reasonably communicated on Our
Family Wizard;
7. [M.W.K.] shall be re-evaluated pursuant to Mark Snyder’s
report following an evaluation on October 21, 2015;
8. Mother shall not keep pet rats in her home or any other place
where the [C]hildren would have access to same.
Trial Court Order, 7/22/16, at 1-2. The order further appointed Attorney
Dorothy Pentrancosta as GAL for the Children. Id. at 2.
On August 19, 2016, Father, acting pro se, filed a notice of appeal.3
In an order entered on August 23, 2016, the trial court directed Father to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b) within ten days or face waiver of all issues on appeal.
Trial Court Order, 7/23/16. On August 29, 2016, Father filed his concise
statement, setting forth eleven issues for review. As Mother does not assert
prejudice from Father’s late concise statement, and Father complied with the
court’s order to file a concise statement by a certain date, we do not find his
issues waived. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)
(holding that there is no per se rule mandating quashal or dismissal of a
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3
Father did not file a corresponding concise statement of errors complained
of on appeal with his notice of appeal as required by Pa.R.A.P. 905(a)(2).
See Pa.R.A.P. 905(a)(2) (“If the appeal is a children's fast track appeal, the
concise statement of errors complained of on appeal as described in Rule
1925(a)(2) shall be filed with the notice of appeal and served in accordance
with Rule 1925(b)(1).”).
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defective notice of appeal in children’s fast track cases); Mudge v. Mudge,
6 A.3d 1031 (Pa. Super. 2011) (same). Cf. J.P. v. S.P., 991 A.2d 904 (Pa.
Super. 2010) (holding that an appellant waives all issues by failing to timely
comply with the trial court’s direct order to file a concise statement); J.M.R.
v. J.M., 1 A.3d 902 (Pa. Super. 2010) (holding that the appellant waived all
issues for failing to file a concise statement in compliance with an order of
this Court).4
In his concise statement and brief on appeal, Father raises eleven
issues, which the trial court addressed as follows:
Matter 1. The court errored [sic] in its discretion to
consider information of public record, Appendix T of
Healthchoices Behavioral Health Services Guidelines for
Behavioral Health Medical Necessity Criteria developed by
Commonwealth of Pennsylvania Department of Public
Welfare Office of Mental Health and Substance Abuse
Services, Butler County Independent Prescriber Directory,
Butler County Provider Directory, Value Behavior Health
(Insurance Company) TSS Scheduling Process,
Pennsylvania Autism Act (Act 62) and Individuals with
Disabilities Education Act.
Father did not raise this objection at the hearing, nor did he
present the [trial court] with any such information to consider.
Matter 2. The court errored [sic] in its discretion by not
allowing into evidence of [sic] letter dated November 20,
2015 and attached BHRS Discharge Summary dated June
18th 2015, from Family Psychological Services a Provider
listed in Butler County Provider Directory. This Provider
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4
Both parties are proceeding pro se in this appeal and appeared at oral
argument. Mother did not file a pro se brief with this Court, precluding her
from arguing, but the panel noted her appearance.
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had availability, verifiable as they did not report “full
capacity” to the required agency.
Father did not make a motion to admit these documents into
evidence and never provided the [c]ourt with any such
documents, nor did he make mention of them. The only exhibit
admitted into evidence was Exhibit 1, which is an evaluation
report issued by Mr. Snyder, which opposing counsel stipulated
to its admission. (Record at 15-16).
Matter 3. The court errored [sic] in its [discretion] by not
allowing phone testimony of Mark Snyder, Licensed
Phycologist and Independent Prescriber[,] author of
prescription for services for minor autistic child [M.W.K.].
Father attempted to call Mr. Mark Snyder as an expert to testify
by telephone, however opposing counsel objected due to unfair
surprise as he did not file a motion requesting that this witness
be allowed to testify by phone before the hearing. (R. at 2-3).
Opposing counsel also objected on the basis of relevancy as she
believed the testimony would go beyond the scope of the
petition and Mr. Snyder’s report. (R. at 3). Furthermore, upon a
proffer of testimony offered by Father, the [trial court]
determined that the scope of testimony exceeded the Petition for
Special Relief and Contempt before the [trial court]. (R. at 3-5).
The testimony from Mr. Snyder would be relevant for a
Modification of Custody as the evidence seeks to change the
parties’ 50-50 legal custody. (R. at 5). The [trial court] left the
possibility open for Mr. Snyder to testify in person a later date if
he is necessary and relevant to the Petition for Contempt and
Special Relief, but Father did not request future testimony from
the [trial court]. (R. at 6). Father also was required to provide
an expert report for Mr. Snyder, if he was to testify in an expert
capacity, which he failed to do. (R. at 7).
Matter 4. The court errored [sic] in its discretion by limiting
the scope of Our Family Wizard emails to October 2015
and not allowing emails to be enter [sic] into evidence
collaborating [Father’s] testimony during trial.
The [trial court] did not limit the Our Family Wizard emails to
October 2015, but rather ordered that they be produced from
October 1, 2015 until March 15, 2016. (R. at 77). The only
objection Father made was that he did not have the funds to
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print all the emails. (R. at 77). Father was ordered to produce
these emails because he brought the petition and alleged that
there is no cooperation from Mother when he attempts to
communicate with her. (R. at 78). Furthermore, Father never
objected to the scope of the emails, so his objection was waived.
Matter 5. The court errored [sic] in its discretion by not
ordering phone records to be produced with ordered Our
Family Wizard emails.
Father indicated that there were specific dates that he was
prohibited from having a phone call with the [C]hildren.
However, Father could not recall the exact dates. The [trial
court] provided Father with an opportunity to refresh his
recollection with a document; however, Father left the phone
records at home and did not present them to the [trial court].
(R. 71). Father also never requested that the [trial court] order
the phone records to be produced.
Matter 6. The court errored [sic] in its discretion by finding
[Father] delayed Co-Parenting by exercising his right to a
qualified co-parenting counselor (therapy) and ignored
testimony and email evidence that [Mother] choose the
counselor Greggory Lobb and after a few sessions refused
to cooperate and continue sessions.
The [trial court] relies on the record to support this finding of
fact.
Matter 7. The court errored [sic] in its findings of facts that
BHRS providers and insurance carriers can and have
denied prescribe [sic] services in prescription by Mark
Synder, Licensed Phycologist [sic] and Independent
Prescriber as outlined in Appendix T of Healthchoices
Behavioral Health Services Guidelines for Behavioral
Health Medical Necessity Criteria Developed by
Commonwealth of Pennsylvania Department of Public
Welfare Office of Mental Health and Substance Abuse
Services, if both parents are not in agreement of service.
By not attending evaluations for a prescription for autistic
services and Inter-Agency Service Planning Meetings
(ISPT) or “funding meeting”, [Mother] has delayed critical
care for autistic minor child [M.W.K].
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Father did not present any documents nor make mention of any
of the above listed documents or forms of information.
Matter 8. The court errored [sic] in its finding by not finding
[Mother’s] inability to communicate and respond in a
timely matter has delayed critical care of minor children
[M.W.K. and E.M.K.].
The [trial court] relies on the record to support this finding of
fact.
Matter 9. The court errored [sic] in its findings of fact that
irreparable harm to autistic minor child [M.W.K.] has not
resulted from significant delays in his treatment,
prescriptions and delay of services in school.
The [trial court] relies on the record to support this finding of
fact.
Matter 10. The court errored [sic] in its discretion by order
dated July 19th of 2016 by denying special relief for sole
legal custody and physical custody of minor children
[M.W.K.] and [E.M.K.] to [F]ather.
The [trial court] relies on the record to support this finding of
fact.
Matter 11. The court errored [sic] in its discretion by order
dated July 19th of 2016 appointing Guardian at [sic] Litem
Dorothy Pentrancosta, Esq..
The [trial court] relies on the record to support this finding of
fact. The [trial court] ordered this appointment due to the
contentious nature between Father and Mother and their inability
to communicate on issues regarding the children, especially their
autistic son, M.W.K.
Trial Court Opinion, 9/22/16, at 1-5 (emphasis in original); see also
Father’s Brief, at 4-6.
In his brief, Father argues as follows.
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In this case two children and their best interests and welfare was
and remains at issue. Specifically in the case of autistic child
M.W.K.[,] neither the [trial c]ourt nor [Mother] understand the
complicated process in obtaining services which are strictly
voluntary or the importance of these services at specific stages
of development. Furthermore, these services are consistently
changing and adapting to the meet the needs of the autistic child
on a monthly basis. Having the capacity to quickly change and
adapt to the needs of an autistic child is critical to his success
and to maximize his potential ultimately leading to a productive
member of society in adulthood. Since the nature of autism
reflects the individual uniqueness not one person can provide
expert testimony to the exact needs of any particular autistic
child therefore all therapies and treatment are developed strictly
from the input of the parents, who are the accepted expert of an
autistic child. Nevertheless we must rely on the fact finding and
broad discretion of the courts to remedy a solution especially in
high conflict cases such as this.
Very early in these proceedings it became obvious a favorable
bias began to form towards [Mother] and her defense council
[sic] being a Guardian at Litem for the Courts in Butler County.
This status elevated credibility towards [Mother’s] council [sic]
and clearly impeded [Father’s] council [sic] attempts to provide
[the trial] court with relevant facts, evidence and testimony.
***
[Father] attempted at numerous times to admit testimony and
documents to the attention of the [trial] court but was denied on
all occasions. (See Record p17-22, p 50, p 59) [Father’s]
testimony identified that by not attending an evaluation and/or
an ISPT meeting any and all service can be denied, changed and
result in service providers not accepting the case. These
documents have been provided to [Mother] on numerous
occasions including her council [sic]. Any documents stating
Law, State approved procedures, and State Approved Insurance
Providers Procedure in accordance to existing laws should be
considered and testimony not need to be from an expert as well
considered hearsay in regards to testimony of these documents
especially when the State itself expects parents to be experts on
these matters. By impeding further testimony and acceptance of
these documents a foundation could not be established for the
introduction of other evidence including supporting
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documentation providing this court and example if procedures
are not properly followed. Important testimony from Mark
Snyder would have indicated [Mother’s] role in termination of
services that already had been started.
Once the obvious bias formed it was clearly impossible for
[Father] to continue his case including testimony, additional
evidence, cross of [Mother] and mount any further objections
became impossible. (See Record p55, p62, p77) This bias was
evident by the [trial] court not ordering phone records to be
produced in support [Father’s] testimony with ordered Our
Family Wizards emails. Our Family Wizard Emails [sic]
themselves should have been ordered from the date of the
custody order to establish and ensure a complete history of
communications including attempts by [Father] to implement the
order. It is within the courts ability with its broad discretion
powers to accept evidence when it is in the best interest of a
child. It is the role of the [c]ourt to ensure a fair and unbiased
trial is held regardless of council [sic] standings and
competencies.
VII. CONCLUSION
In conclusion [Father] request[s] this case and record to be
reopened for additional evidence, testimony and objection to be
considered.
Father’s Brief, at 10-15.
Father asserts that the trial court erred in not holding Mother in
contempt and not awarding him sole and physical custody of the Children.
In P.H.D. v. R.R.D., 56 A.3d 702, 708 (Super. 2012), we stated that a
motion for modification must be filed before a trial court may alter the terms
of a custody order. With regard to civil contempt, this Court has set forth
our scope and standard of review as follows:
In reviewing a trial court’s finding on a contempt petition, we are
limited to determining whether the trial court committed a clear
abuse of discretion. This Court must place great reliance on the
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sound discretion of the trial judge when reviewing an order of
contempt.[fn]
___________________________________________________
[fn] To sustain a finding of civil contempt, the complainant must
prove certain distinct elements by a preponderance of the
evidence: (1) that the contemnor had notice of the specific order
or decree which he is alleged to have disobeyed; (2) that the act
constituting the contemnor’s violation was volitional; and (3)
that the contemnor acted with wrongful intent.
Id. at 706 (Super. 2012) (quotation and citation omitted) (footnote in
original).
Additionally, we have stated:
When considering an appeal from an [o]rder holding a party in
contempt for failure to comply with a court [o]rder, our scope of
review is narrow: we will reverse only upon a showing the court
abused its discretion. The court abuses its discretion if it
misapplies the law or exercises its discretion in a manner lacking
reason. To be in contempt, a party must have violated a court
[o]rder, and the complaining party must satisfy that burden by a
preponderance of the evidence.
***
In Langendorfer [v. Spearman], 797 A.2d 303 (Pa. Super.
2002), this Court stated that a party may be held in contempt
for willfully failing to comply with a visitation or partial custody
order, as long as the procedures outlined in Crislip v.
Harshman, 365 A.2d 1260 (Pa. Super. 1976), are followed. . . .
Further, with regard to contempt orders, this Court has stated:
Each court is the exclusive judge of contempts against its
process. The contempt power is essential to the
preservation of the court’s authority and prevents the
administration of justice from failing into disrepute.
When reviewing an appeal from a contempt order, the
appellant [sic] court must place great reliance upon the
discretion of the trial judge. On appeal from a court
order holding a party in contempt of court, our scope of
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review is very narrow. We are limited to determining
whether the trial court committed a clear abuse of
discretion.
Harcar v. Harcar, 982 A.2d 1230, 1234-1235 (Pa. Super. 2009) (some
quotations and some citations omitted). We reiterate, “[e]ach court is the
exclusive judge of contempts against its process.” Harcar, 982 A.2d at
1235. Moreover, “[t]his Court defers to the credibility determinations of the
trial court with regard to the witnesses who appeared before it, as that court
has had the opportunity to observe their demeanor.” Id. at 1236 (quotation
omitted).
We also review a trial court’s ruling on a petition for special relief for
an abuse of discretion. Johnson v. Johnson, 864 A.2d 1224, 1229 (Pa.
Super. 2004). We have explained:
An abuse of discretion has been explained by the appellate
courts of this Commonwealth as more than an error in
judgment; we may find an abuse of discretion only on clear and
convincing evidence that the trial court misapplied the law or
overrode it or that the judgment reached was manifestly
unreasonable, or based on bias, ill-will, or partiality. See
Bowser v. Blom, 766 A.2d 1259, 1260-61 (Pa. Super. 2001).
Id. “[A] petition for special relief is an appeal to the equitable powers of
the trial court.” Id. at 1230.
After reviewing the record, we conclude that the trial court did not
abuse its discretion in denying Father’s motion to hold Mother in contempt.
Moreover, the trial court did not err in not modifying custody as no custody
modification petition was before it.
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Regarding Father’s arguments concerning the trial court’s decisions to
admit or exclude certain items and/or testimony from evidence, we note the
following standard of review:
Admission of evidence is within the sound discretion of the trial
court and a trial court’s rulings on the admission of evidence will
not be overturned absent an abuse of discretion or
misapplication of law. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will, as shown by the evidence or the record, discretion
is abused.
Schuenemann v. Dreemz, LLC, 34 A.3d 94, 100-101 (Pa. Super. 2011)
(quotations and citations omitted). Thus, the question of whether to admit
or exclude evidence is within the sound discretion of the trial court. See
A.J.B. v. M.P.B., 945 A.2d 744, 749 (Pa. Super. 2008). We have explained:
The basic requisite for the admission of any evidence is that it be
both competent and relevant. Evidence is “competent” if it is
material to the issues to be determined at trial, and “relevant” if
it tends to prove or disprove a material fact in issue.
Turney Media Fuel, Inc. v. Toll Bros., 725 A.2d 836, 839 (Pa. Super.
1999).
Further, although we recognize that Father is proceeding pro se, this
does not protect him from a finding of waiver. It is well established that
[w]hile this [C]ourt is willing to liberally construe materials filed
by a pro se litigant, . . . [such litigant] is not entitled to any
particular advantage because he lacks legal training. Further,
any layperson choosing to represent himself in a legal
proceeding must, to some reasonable extent, assume the risk
that his lack of expertise and legal training will prove his
undoing.
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Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa. Super. 2003) (citations,
quotation marks, and brackets omitted). We find no abuse of the trial
court’s discretion in finding that Father had waived some of his issues
regarding the admission and/or exclusion of evidence, and that his
remaining challenges to the trial court’s evidentiary rulings lack merit.
Moreover, issues that were not raised by motion or complaint before
the trial court in the first instance may not be raised on appeal. Pa.R.A.P.
302(a); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 116-117
(Pa. 1974). Thus, Father has waived the issue of trial court bias by his
failure to preserve it at the earliest opportunity, and he cannot raise it now
on appeal. See Schwarcz v. Schwarcz, 548 A.2d 556, 572 (Pa. Super.
1988) (“[O]nce a custody order has been issued and a party has waived his
right to disqualify the trial judge, he cannot complain after the issuance of
the order.”). Even if Father had not waived the bias issue, “[a] jurist's
former affiliation, alone, is not grounds for disqualification.”
Commonwealth v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998). As nothing in
the record evidences any bias against Father, the fact that the trial court
judge might know Mother’s trial counsel professionally did not warrant
recusal. See id. (holding that a judge’s affiliation with the Fraternal Order
of Police was not grounds for disqualification); City of Pittsburgh v.
DeWald, 362 A.2d 1141, 1143-1144 (Pa. Cmwlth. 1976) (holding that the
trial judge was not required to recuse herself based on her having practiced
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law with the attorney for one of the parties). Father’s claim of trial court
bias does not warrant reversal in this instance. “It has long been held that
trial judges, sitting as factfinders, are presumed to ignore prejudicial
evidence in reaching a verdict.” Commonwealth v. Irwin, 579 A.2d 955,
957 (Pa. Super. 1990).
In sum, our review of the record in this matter supports the trial
court’s factual findings and conclusions. As we find that the record supports
the trial court’s credibility assessment, we will not disturb the trial court’s
decision that Mother has not acted in contempt of the trial court’s June 30,
2015 custody order. Further, our review supports the trial court’s
determination that the special relief Father requested in his petition, i.e., an
award of sole legal and physical custody to him, was not warranted,
especially in light of Father’s failure to file a petition for modification of
custody. We, therefore, affirm the trial court’s July 22, 2016 order denying
Father’s petition to find Mother in contempt of the June 20, 2015 custody
order and to grant special relief to him in the form of sole legal and physical
custody, on the basis of the discussion in the trial court’s opinion entered on
September 22, 2016.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2017
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