R.S. v. J.M. ( 2020 )

J-S26044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.M. :
:
Appellant : No. 126 WDA 2020
Appeal from the Order Entered December 19, 2019
In the Court of Common Pleas of McKean County Civil Division at No(s):
No. 501 C.D. 2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 06, 2020
J.M. (Mother) appeals from the December 19, 2019 final custody order
entered in the Court of Common Pleas of McKean County (trial court) awarding
R.S. (Father) primary physical custody of their 13-year-old daughter. Because
the trial court based its decision in part on its unrecorded interviews with the
daughter, we vacate and remand.
I.
The parties married in 1995 and had two daughters, T.S. (born in
February 1997) and A.S. (born in December 2006) (Child). In November
2011, Father filed for divorce in Elk County and requested partial custody of
the parties’ daughters. At the time, both daughters were living with Mother
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* Retired Senior Judge assigned to the Superior Court.
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in the marital home. Tragically, while the divorce was pending in 2012, T.S.
died in an accident at age 15. After her death, the parties eventually reached
a custody agreement of Child in October 2013, with Mother keeping primary
physical custody while Father received partial custody. In 2015, Father filed
a petition for modification. Around the same time, Mother moved with Child
to neighboring McKean County. In February 2016, the parties reached a new
agreement in which Mother retained primary physical custody while Father
received custody two weeknights per week plus every other weekend. After
the parties finally divorced in May 2016, there were no further developments
for almost two years until March 2018, when the parties agreed to transfer
venue to McKean County.
The dispute in this appeal began on June 15, 2018. On that date, Father
filed a petition for special relief requesting make-up time with Child because
of conflicts with his schedule. The trial court treated the petition as seeking
modification and, after mediation failed, scheduled a trial. At the contentious
November 29, 2018 custody trial, Father presented evidence that Child had a
strained relationship with Mother and was unhappy living with her. Mother
strongly disputed these claims and portrayed Child as having a great
relationship with Mother. After all witnesses testified, the trial court conducted
an off-the-record interview of Child with counsel present. The next day, the
trial court ordered a mental health evaluation of Child and entered an interim
custody order increasing Father’s weekends to three a month.
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The case then stalled because of difficulty finding a mental health
evaluator. When the evaluation was finally completed, the parties reconvened
for an August 14, 2019 status conference at which the trial court expressed
that it found the evaluation unhelpful. At Mother’s request, the trial court
conducted another off-the-record interview of Child at the conference. As
later recounted in the trial court’s Rule 1925(a) opinion, Child expressed that
she wished to live with Father because of Mother’s disparaging treatment of
her. Trial Court Opinion (T.C.O.), 2/11/20, at 7. A week later, on August 21,
2019, Father alleged in an emergency petition for custody that Mother berated
Child after the conference because of what she told the court. Mother disputed
this claim in her reply, averring that Child told her that she hated staying with
Father. Understandably, based on these conflicting claims, the trial court
appointed a guardian ad litem (GAL) to represent Child and scheduled a
hearing on the emergency petition for September 3, 2019.
At that hearing, the trial court held an on-the-record discussion with
both parties and their counsel rather than receive evidence about what
happened after the status conference. Also present was the GAL, who relayed
that Child told her that she wanted to live with Father. Though Mother
contested Father’s allegations, both parties agreed with the GAL’s
recommendation that Child receive counseling. The trial court agreed and
ordered the GAL to find a therapist and have Child begin counseling before
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the next hearing.1 After Child began counseling, the parties met for another
hearing on December 2, 2019. Child’s therapist testified that Child told him
that she wanted to live with Father instead of Mother. Child also apparently
told the trial court the same thing in an in camera interview. Like the prior
two times, the interview was done without a court reporter.
On December 19, 2019, the trial court entered an order awarding Father
primary physical custody of Child while Mother received two weeknights per
week plus every other weekend. In its accompanying opinion, the trial court
analyzed the sixteen-factor best-interest test under 23 Pa.C.S. § 5328(a) and,
because Child would be moving back to Elk County, the ten relocation factors
under 23 Pa.C.S. § 5337(h). While finding the majority of the best-interest
factors as weighing on neither side, the trial court gave an extended discussion
of the seventh factor concerning the preference of Child:
The Court spoke with the Child. She is somewhat immature for
her age. She genuinely loves both of her parents and wants to
spend time with each of them. She wants them to get along. She
and her Mother’s personalities are vastly different and this has
caused conflict in their relationship. Child’s aspirations and
Mother’s expectations for her differ. Mother needs to be
supportive of daughter and not judgmental of her performance
whether it be on the athletic field, at school, in the home or in the
community. Mother’s parenting style is authoritarian. She admits
to being overly protective of Child. Father’s parenting style is
permissive. He is more likely to allow Child to do what she wishes.
Mother on the other hand makes demands of Child that Child does
not always find to be justified or reasonable. Father indulges
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1 The trial court also increased Father’s custody of Child on weekends to
include Sunday overnights.
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Child. Father must be supportive of Mother’s reasonable decisions
regarding Child’s permitted activities and behaviors. Child has
recently expressed to the Court and to her counselor, Mr. Owens,
a wish to live with her Father. Child’s stated reason is that she
and her Mother do not get along and that she wants to avoid
further arguments with her. The Court believes this wish is more
basic - Mother won’t allow her to be a teenager (Mother will be
unduly restrictive) and Father will allow her greater freedoms. If
the Court is correct in this assessment Father must be less a friend
and more a parent to Child. The Court will give the Child’s
comments the weight the Court deems appropriate.
Opinion and Order, 12/2/19, at 9-10 (unpaginated).
In the trial court’s view, the parties had placed Child at the center of
their own disputes, and Child was attempting to please both of them by telling
them what she thought they wanted to hear about the other parent. The trial
court, therefore, concluded that changing primary physical custody would
reset the relationships between everyone for the better. Id. at 12.
Mother timely appealed2 and concurrently filed her Rule 1925(b)
statement. Though not specifically claiming that the trial court erred in
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2 Our scope and standard of review of child custody orders are settled:
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
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interviewing Child without a court reporter, Mother did allege that the trial
court erred by relying on non-record evidence in changing primary custody to
Father. While finding none of Mother’s claims as individually warranting relief,
the trial court nonetheless recommended in its Rule 1925(a) opinion that we
vacate its final custody order and remand for further proceedings, predicting
that “it is inevitable that because of the irregularities with some of the
evidence one or the other of the parties will file a Petition for Modification of
Custody at his or her first opportunity.” T.C.O. at 3.
Relevant to our decision below, the trial court summarized more of its
off-the-record interviews with Child in discussing its analysis of the best-
interest and relocation factors.
Child’s reasons for wanting to live with Plaintiff/Father included
Child’s desire to avoid conflict with Defendant/Mother, to spend
more time with her half-sisters and to be able to pursue her
passion for horseback riding, an activity that Defendant/Mother
has not supported. The Court concedes that it did not put all of
Child’s reasons in its opinion. Child’s desire to reduce conflict
about which there is a considerable amount of evidence is reason
enough to change primary custody as Child’s emotional well-being
is a factor that is to be afforded great weight. Defendant/Mother
often berated [C]hild to the detriment of Child’s self-esteem and
well[-]being. Child has kept a diary that paints a very harsh
picture of Defendant/Mother. And, it is evident to the Court from
its several meetings with Child that she and her Defendant/Mother
are often at odds with each other. Repeatedly berating one’s child
is not acceptable conduct. Defendant/Mother’s conduct has
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court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
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caused friction in her and Child’s relationship and has caused Child
emotional distress.
Id. at 23-24.
II.
Mother argues that the trial court, in giving Father primary custody,
repeatedly relied on statements that were made by Child during interviews
with the trial court. However, as Mother observes, because none of these
interviews were recorded or transcribed by a court reporter, this Court is now
faced with having to assess the trial court’s custody determination based on
facts that are outside of the record. Mother’s Brief at 53-54, 56. We agree.3
Pennsylvania Rule of Civil Procedure 1915.11 governs the interview of a
child involved in a custody matter. Under that rule, an interview of the child
is discretionary and not mandatory. T.D. v. E.D., 194 A.3d 1119, 1125 (Pa.
Super. 2018). However, when such an interview occurs, our Supreme Court
is clear about how it is to be conducted.
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
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3In his brief, Father addresses neither the off-the-record interviews with Child
nor the trial court’s recommendation that we vacate its final custody order.
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the right to interview the child under the supervision of the court.
The interview shall be part of the record.
Pa.R.C.P. 1915.11(b) (emphasis added).
Before the adoption of Rule 1915.11, this Court held that it was non-
waivable reversible error for a trial court to base its custody decision on an
unrecorded interview with the child, finding that the failure to transcribe the
interview precludes adequate appellate review. Commonwealth ex rel.
Scott v. Rider, 375 A.2d 149, 151 (Pa. Super. 1977); Gunter v. Gunter,
361 A.2d 307, 310-12 (Pa. Super. 1976) (holding trial court improperly relied
on untranscribed statement of child).
We reaffirmed this holding after the adoption of Rule 1915.11 in Ottolini
v. Barrett, 954 A.2d 610 (Pa. Super. 2008). There, the father challenged a
trial court’s failure to make a record of its interview with his children. The trial
court admitted that it did not create a record of its interview, but explained
that it did so in order to preserve the confidentiality of the children’s testimony
and protect against recriminations from the parents. Id. at 612-613. On
appeal, we held that the trial court’s well-intentioned concern for
confidentiality did not overcome our Supreme Court’s clear mandate in Rule
1915.11 that any interview with a child must be made part of the record. Id.
at 613. We further observed that it was clear the trial court relied, at least in
part, on the unrecorded interviews. Id. Accordingly, because the interview
with the children was not part of the record, the record was incomplete and
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prevented the panel from assessing whether the trial court properly weighed
the evidence. Id. at 615.4
Turning to this case, all of the interviews with Child were held without a
court reporter, including the final December 2, 2019 interview when she
apparently expressed that she wanted to live with Father. N.T., 12/2/19, at
34. Additionally, as quoted at length above, the trial court relied on Child’s
statement in its consideration of Child’s preference under 23 Pa.C.S.
§ 5323(a)(7). The same is true in the above-quoted passage from the trial
court’s Rule 1925(a) opinion in which the court credits Father’s factual
contentions that Mother often berated Child and caused her emotional
distress.
As evidenced by these passages, the trial court relied heavily on Child’s
interviews in resolving the factual disputes at the center of the parties’
dispute. Indeed, at the time it rendered its final custody decision, it had been
over a year since the November 2018 custody trial. After that trial, the only
record evidence received by the trial court was from the therapist at the
December 2, 2019 hearing that, in any event, the trial court later admitted
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4 The Ottolini panel also held that the trial court erred in relying on the
opinions in an expert report that was never admitted in violation of Pa.R.C.P.
1915.8(a). Ottolini, 954 A.2d at 613-615. In so finding, however, the panel
clarified that the trial court’s error in failing to record the interview with the
children was sufficient to vacate the trial court’s order, and that it was
addressing the failure to admit the expert’s report given that the case would
be remanded. Id. at 613.
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was afforded little weight. T.C.O. at 24. As a result, it is evident that Child’s
testimony was the main basis for the trial court’s factual findings and,
ultimately, its awarding Father primary physical custody. This case, therefore,
differs from those instances when we have excused a trial court’s failure to
record its interview with a child because there was substantial creditable
record evidence outside of the child’s testimony to support the factual findings.
See, e.g., N.H.M. v. P.O.T., 947 A.2d 1268, 1273-76 (Pa. Super. 2018) (trial
court’s factual finding that children were sexually assaulted was supported by
record evidence outside of its in camera unrecorded interviews with the
children).
By failing to interview Child with a court reporter present, we are
hindered in being able to fulfill our duty under our broad scope of review.
Under our standard of review, while we must accept the factual findings of a
trial court in a custody matter, we are only bound to do so if they “are
supported by competent evidence of record.” S.T., supra. Here, because the
trial court’s factual findings and inferences hinge on non-record testimony
taken in violation of the clear language of Rule 1915.11(b), as well as our
holding in Ottolini, our ability to conduct meaningful appellate review of the
trial court’s determination is severely hampered. Consequently, we vacate
the trial court’s final custody order.
Accordingly, we remand the matter to the trial court to interview Child
again in accordance with Rule 1915.11(b) and issue a new decision within 45
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days of the date of this Memorandum. To satisfy the interests of finality and
stability in custody arrangements for this child, we order that the current
custody arrangements be retained pending the outcome of a new decision.
Order vacated; case remanded for proceedings consistent with this
Memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2020
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