W.J.B. OBO Minor Children B.B. & C.B. v. M.L.B. ( 2020 )


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  • J-S67019-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    W.J.B. OBO MINOR CHILDREN B.B. & :         IN THE SUPERIOR COURT OF
    C.B.                             :              PENNSYLVANIA
    :
    Appellant         :
    :
    :
    v.                     :
    :
    :         No. 954 MDA 2019
    M.L.B.                           :
    Appeal from the Order Entered May 10, 2019
    In the Court of Common Pleas of Lebanon County Civil Division at No(s):
    2018-40218
    BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
    MEMORANDUM BY DUBOW, J.:                              FILED MARCH 09, 2020
    Appellant, W.J.B. (“Mother”), appeals from the May 10, 2019 Order that
    denied the Petition for Protection From Abuse (“PFA”) Order that Mother filed
    on behalf of minor children B.B. and C.B. against M.L.B. (“Father”) pursuant
    to the PFA Act, 23 Pa.C.S. §§ 6101-6117. Upon careful review, we affirm.
    Mother and Father are married, but currently separated, and are parents
    to 16-year-old B.B., 15-year-old M.B., and 7-year-old C.B.       Pursuant to a
    temporary custody agreement, Mother has primary physical custody of the
    children and Father has partial physical custody of children during some
    weekend days.       Father is a nineteen-year veteran of law enforcement and
    served simultaneously as a police officer in one borough and chief of police in
    a second locality.
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-S67019-19
    On April 17, 2019, Mother filed a PFA Petition on behalf of B.B. and C.B.
    against Father, based upon an event that occurred on April 14, 2019, during
    a custody exchange at the paternal grandparents’ home. In the PFA Petition,
    B.B. alleged that when she and her maternal grandmother were picking up
    C.B. from Father’s custody, B.B. engaged in a verbal altercation with her
    paternal grandmother in Father’s presence and Father brandished a gun,
    which scared B.B. Specifically, B.B. stated:
    My [maternal grandmother] was taking me to pick up [C.B.]. He
    was at my [paternal] grandparent[s’] house. When we got there,
    my [paternal] grandmother came out and told me to stop. She
    also told me that she did not want anything to do with me. I told
    her, “I am your granddaughter.” [Father] came out and said that
    I[] “don’t act like it.” After this, [C.B] came outside and said
    goodbye to [Father]. While [C.B.] and I were walking to the car,
    I turned around and looked at [Father]. He gave me a dirty look,
    pulled his shirt up, and grabbed his gun. I did not see him pull it
    out of the holster. I grabbed [C.B.] and we ran to the car. When
    we got into the car, [C.B.]’s foot got caught in the door. I told my
    [maternal] grandmother what happened. She rolled her window
    down and asked [Father] if we needed to call the police. My
    [paternal grandmother] told her that we were on their property
    and [Father] told her to not speak to us. At this point I got scared
    and told her to leave. After we left, I called [Mother]. She told us
    to call 911. The police went and spoke to [Father]. They did not
    file charges against him because they considered it, “He said. She
    said.” [Father] has threatened to kill me many times, especially
    when he was drunk. That is why I was afraid when he grabbed
    his gun.
    PFA Petition, dated 4/17/19, at 2. In the PFA Petition, C.B. corroborated B.B.’s
    allegations, stating that he “saw [Father] pull his shirt up and show the gun”
    and C.B. proceeded to run to the car where his foot got stuck in the door. 
    Id. at 3.
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    On the same day, after an ex parte hearing, the trial court entered a
    Temporary PFA Order against Father pending a hearing.
    The trial court held hearings on April 26, 2019 and May 3, 2019 and
    heard testimony from 12 witnesses, including Mother; B.B.; C.B. (in camera);
    M.B.; the maternal grandmother; Police Officer Patrick McKinney; Father; the
    paternal grandparents; Father’s girlfriend; T.C., fiancé of Father’s oldest
    daughter; and D.B., Father’s uncle.
    During the hearing, Mother’s witnesses and Father’s witnesses
    presented a very different version of events leading up to and including the
    incident in question.
    In sum, Mother testified that she was not present for the incident alleged
    in the Petition, but that afterwards B.B. called, was “hysterical[,]” and
    informed Mother that Father “showed his weapon[.]” N.T. Hearing, 4/26/19,
    at 5. Mother then advised B.B. to call the police. 
    Id. Mother also
    testified that during their 17 years of marriage, it was
    Father’s habit to carry a firearm at all times. 
    Id. at 6-7.
    Mother stated that,
    prior to their separation in July 2018, she witnessed Father drink alcohol in
    excess whenever he was not on duty and that he was often abusive when
    intoxicated. 
    Id. at 9,
    18-20. Mother described two incidents where Father
    attempted to choke B.B. and numerous times when Father threatened to kill
    B.B.   
    Id. Mother testified
    that Father was intoxicated during all of the
    incidents, and that Father pleaded nolo contendre to the charge of Harassment
    Subject to Physical Contact with respect to one of the choking incidents. 
    Id. -3- J-S67019-19
    at 10, 18-20. Finally, Mother acknowledged that she recently pleaded guilty
    to two felony counts of Theft by Deception and was currently awaiting
    sentencing. 
    Id. at 20.
    B.B. testified that on the day of the incident, after she got in a verbal
    altercation with her paternal grandmother, Father nodded his head and
    widened his eyes, pulled up his shirt with his left hand, and moved his right
    hand and placed it on top of his gun. N.T. Hearing, 5/3/19, at 11-15. B.B.
    stated that she was scared, crying, and shaking. 
    Id. at 16,
    49.
    B.B. stated that, to her knowledge, Father always has his gun with him
    and sometimes leaves it in the car, but she has never seen him pull it out and
    shoot it. 
    Id. at 18,
    37, 53. B.B. testified that Father physically abused and
    threatened her on numerous occasions when he was drinking and specifically
    described two separate incidents that occurred in December 2017 and May
    2018 when Father grabbed and choked her. 
    Id. at 20-21.
    B.B. stated that
    she wore makeup to cover up the bruises that occurred from the December
    2017 incident.   
    Id. at 22-23.
      B.B. explained that she never told anyone
    because she did not think anyone would believe her and she did not call the
    police because “[m]y dad is the police.” 
    Id. at 24;
    30. B.B. testified that
    Father attended a “first responder rehab” in August 2018 and she had not
    seen him drink alcohol since then. 
    Id. at 52.
    B.B. testified that she did not
    see Father drinking alcohol on the day of the incident, but that Father’s
    gestures were similar to the gestures that Father made in other instances
    when he was intoxicated. 
    Id. at 53.
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    C.B. testified in camera. There is no transcript of his testimony.
    The maternal grandmother testified that when she drove B.B. to the
    paternal grandparents home to pick up C.B., and when B.B. ran back to the
    car with C.B., B.B. was “distraught” and told her to leave quickly because
    Father “just went for his gun.” 
    Id. at 57.
    The maternal grandmother further
    testified that Father often drinks in excess and there have been multiple
    incidents over the last 16 years where the kids, in fear, have contacted her to
    come get them when Father was drinking. 
    Id. at 59-60,
    62-63.
    M.B. testified that, prior to his parents separating in August 2018, he
    often observed Father making threats to B.B. while Father was intoxicated,
    and he was scared of Father when Father was intoxicated. 
    Id. at 68-74.
    Officer McKinney testified that he responded to the scene and
    interviewed B.B.   
    Id. at 75-76.
       B.B. explained to him that she and her
    paternal grandmother had a verbal altercation and then Father “made a face
    towards her and made a movement towards his right hip.” 
    Id. at 76.
    Officer
    McKinney testified that B.B. never told him that she saw a gun or that Father
    pulled a gun out. 
    Id. at 76-77.
    Officer McKinney did not observe a gun on
    Father or smell alcohol on Father’s breath. 
    Id. at 78,
    81-82.
    Officer McKinney also testified that Father, paternal grandparents,
    Father’s girlfriend, and “another young man” spoke to him “in mass” and
    stated that Father never left the doorway of the residence or interacted with
    B.B. 
    Id. at 78,
    83.
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    Father testified that, on the day of the incident, he spent the whole day
    with his family and girlfriend and that he did not have his gun on him, did not
    drink alcohol, and did not make any threatening gestures towards B.B. 
    Id. at 92-97,
    105, 111-12.      Father stated that he heard the verbal altercation
    between B.B. and the paternal grandmother from the living room, walked to
    the doorway of the house, gave C.B. a kiss before he ran to the car, and went
    back into the house. 
    Id. at 99-103.
    Father recalled being surprised when
    police arrived to question him. 
    Id. Father adamantly
    denied that he ever had a drinking problem, and
    testified that he only attended the rehab center in August 2018 to receive
    behavioral counseling and potentially repair his marriage. 
    Id. at 106-08,
    126-
    27. Father also denied ever physically abusing his children. 
    Id. at 22.
    Father
    estimated that he had approximately two days per month where he did not
    have work or engage in a scheduled activity. 
    Id. at 85.
    In particular, Father
    stated that he is employed by two different police forces; is a high school track
    and middle school wrestling coach; is a second lieutenant with the United
    States Air Force Auxiliary; is a member of Knights of Columbus and the
    Masonic Lodge; is the chairman for the township emergency services
    committee where he oversees two fire departments; and is a boy scout
    volunteer. 
    Id. at 84.
    The paternal grandparents, Father’s girlfriend, and T.C. all testified that
    they were present for the incident and did not observe Father with a gun,
    drink alcohol in their presence, or make a threatening gesture to B.B. 
    Id. at -6-
    J-S67019-19
    136-78.    In addition, the paternal grandparents testified that, to their
    knowledge, Father was not abusive and did not have a drinking problem. 
    Id. at 139-50;
    156-61. Father’s uncle testified that he saw Father approximately
    twice a week and that he has never seen Father intoxicated and never saw
    Father with a concealed weapon off-duty. 
    Id. at 180-85.
    On May 10, 2019, the trial court filed an Opinion and Order, which
    denied Mother’s PFA Petition.
    Mother timely appealed. Both Mother and the trial court complied with
    Pa.R.A.P. 1925.
    Mother raises the following issues on appeal:
    1. Did the trial court err as a matter of law by denying [Mother]’s
    request for relief under the [PFA] Act despite finding that the
    protected minor children expressed credible fear of [Father]?
    2. Did the trial court abuse its discretion by denying relief to
    [Mother] based upon a determination made as to the most
    recent incident of alleged abuse without addressing or
    considering past incidents of abuse testified to by [Mother]?
    3. Did trial court err as a matter or law by considering, in its
    opinion, elements outside of those specifically required of
    [Mother] to prove under the [PFA] Act?
    Mother’s Br. at 4.
    In a PFA action, this Court reviews the trial court’s legal conclusions for
    an error of law or an abuse of discretion. Custer v. Cochran, 
    933 A.2d 1050
    ,
    1053-54 (Pa. Super. 2007) (en banc).         A trial court does not abuse its
    discretion for a mere error of judgment, but rather “where the judgment is
    manifestly unreasonable or where the law is not applied or where the record
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    shows that the action is a result of partiality, prejudice, bias, or ill will.”
    Mescanti v. Mescanti, 
    956 A.2d 1017
    , 1019 (Pa. Super. 2008) (citation
    omitted).   Moreover, on appeal, this Court will defer “to the credibility
    determinations of the trial court as to witnesses who appeared before it.
    Karch v. Karch, 
    885 A.2d 535
    , 537 (Pa. Super. 2005). It is well-settled that
    “the trier of fact while passing upon the credibility of witnesses and the weight
    of the evidence produced, is free to believe all, part or none of the evidence.”
    Commonwealth v. Walsh, 
    36 A.3d 613
    , 619 (Pa. Super. 2012) (citation
    omitted). Finally, we review the evidence of record in the light most favorable
    to, and grant all reasonable inferences to, the party that prevailed before the
    PFA court. Snyder v. Snyder, 
    629 A.2d 977
    , 982 (Pa. Super. 1993).
    The purpose of the PFA Act is “to protect victims of domestic violence
    from those who perpetrate such abuse” and “its primary goal is advanced
    prevention of physical and sexual abuse.” Lawrence v. Bordner, 
    907 A.2d 1109
    , 1112 (Pa. Super. 2006) (citation and internal quotation marks omitted).
    The PFA Act defines the term “abuse” in pertinent part as, “[p]lacing another
    in reasonable fear of imminent serious bodily injury.”            23 Pa.C.S. §
    6102(a)(2). When hearing evidence in a PFA case, “the court’s objective is to
    determine whether the victim is in reasonable fear of imminent serious bodily
    injury[.]” Raker v. Raker, 
    847 A.2d 720
    , 725 (Pa. Super. 2004). The intent
    of the alleged abuser is “of no moment.” 
    Id. The petitioner
    must prove that
    “abuse” occurred by the preponderance of the evidence, which this Court has
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    defined as “the greater weight of the evidence, i.e., to tip a scale slightly[.]”
    
    Id. at 724.
    In her first issue, Mother avers that the trial court erred when it denied
    the entry of a PFA order despite the court’s finding that, in her testimony
    regarding past incidences where Father was intoxicated, B.B. expressed
    credible fear of Father. Mother’s Br. at 11. Mother argues that the trial court’s
    findings incorrectly focused on whether a firearm was present and whether
    Father was intoxicated during the altercation as described in the PFA, when
    the correct analysis should have been whether Father placed B.B. in
    “reasonable fear of imminent serious bodily injury” pursuant to 23 Pa.C.S. §
    6102(a) and whether B.B.’s fear was reasonable given the parties’ history.
    
    Id. at 16.
    Mother is correct in her assertion that, in its May 10, 2019 Opinion, the
    trial court made a finding that all three children “expressed credible fear of
    what their father could do when intoxicated.” Trial Ct. Op., filed 5/10/19, at
    9. However, the trial court also concluded that B.B.’s testimony regarding the
    incident in question was not credible. Specifically, the trial court found that it
    could not “accept B.B.’s description in [c]ourt of what occurred” because “[a]s
    it relates to what actually happened on April 14, [2019,] B.B.’s inconsistent
    statements wound her credibility.” 
    Id. at 11.
    The trial court rejected B.B.’s
    version of what occurred during the custody exchange, which includes her
    statements that she was afraid, and accepted Father’s version that he was not
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    intoxicated and did not threaten B.B. with a gun. 
    Id. at 13-14.
    The trial court
    opined that Mother’s witnesses, as a whole, were less credible than the
    witnesses that Father presented:
    The key witnesses presented by [Mother] in support of her request
    for PFA Relief have credibility issues. [Mother] herself has
    plead[ed] guilty to theft. She abused the trust of youth sports
    groups to embezzle $50,000. This crimin falsi offense wounds her
    credibility. . . B.B. articulated three (3) materially different
    versions of the event in question, which wounds her credibility.
    The parties’ youngest son, [C.B.] testified in such a hesitant and
    unconvincing manner that we found his testimony to be almost
    completely unbelievable.
    While we do not accept the totality of what [Father]’s family
    reported [(for example we do not accept the family’s denial of
    [Father]’s alcohol problem)], Father’s family members had far
    fewer credibility issues than did [Mother]’s witnesses. [Father]’s
    family was consistent in their testimony. Moreover, the testimony
    of [Father]’s family was corroborated by [T.C] and Officer
    McKinney. Stated simply, we found [Father]’s version of facts to
    be more credible than the version proffered by [Mother].
    By virtue of the above, we reject [Mother]’s theory about what
    occurred on April 14, 2019. Specifically, we do not believe that
    [Father] threatened B.B. with a gun.
    Trial Ct. Op., filed 5/10/19, at 15.
    The record supports the trial court’s findings. As stated above, we defer
    to the credibility determinations of the trial court and the trial court is free to
    believe all, part, or none of the evidence.     See 
    Karch, 885 A.2d at 537
    ;
    
    Walsh, 36 A.3d at 619
    . Accordingly, it was not an abuse of discretion for the
    trial court to make two distinct and opposing credibility findings, namely, that
    B.B.’s fear of Father on prior occasions when he was intoxicated was credible,
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    but that B.B.’s depiction of events during the custody exchange lacked
    credibility.
    Because of the trial court’s credibility findings, Mother’s argument that
    the trial court failed to consider whether Father placed B.B. in “reasonable
    fear” pursuant to Section 6102 fails. Simply put, the trial court rejected B.B.’s
    version of the custody exchange, including the fear B.B. allegedly felt, and
    accepted Father’s version that he was not intoxicated and did not threaten
    B.B. with a gun. As a result, the trial court made a finding that the allegations
    in the PFA Petition did not constitute “abuse” under Section 6102. We defer
    to the credibility findings of the trial court and, thus, reject Mother’s argument.
    In her second issue, Mother avers that the trial court abused its
    discretion when it failed to consider B.B.’s testimony concerning past incidents
    of serious physical abuse by Father when the court concluded that the incident
    in question did not rise to the level of “abuse” under the PFA. Mother’s Br. at
    20-21. The record belies Mother’s claim.
    This Court has held that, in a PFA proceeding, evidence about prior
    alleged abuse is “relevant to an understanding as to the reasonableness of
    [the petitioner]’s fear relative to the present petition.”        Buchhalter v.
    Buchhalter, 
    959 A.2d 1260
    , 1264 (Pa. Super. 2008) (emphasis added). This
    Court explained that after hearing evidence regarding past incidences of
    abuse, “the court is in a position to determine credibility and weight and
    properly determine the reasonableness of [the petitioner]'s alleged fear and
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    whether she proved by a preponderance of the evidence that the present
    alleged incidents rose to the level of abuse as defined by the PFA Act.” 
    Id. Here, the
    trial court permitted Mother, B.B., C.B., M.B., and the
    maternal grandmother to testify regarding Father’s alleged past incidences of
    abuse while intoxicated.   Based on that testimony, the trial court made a
    finding that “Father has a problem with alcohol abuse, and that his behavior
    when intoxicated can be unloving and unproductive.”         Trial Ct. Op., filed
    5/10/19, at 10.     The trial court further opined that, while it considered
    Father’s past conduct, it could not issue a PFA Order based solely on Father’s
    past conduct:
    Without question, [this court] considered the past relationship
    between [Father] and his children, and the conduct of [Father]
    that drove a wedge between himself and his children. [This court]
    did not and could not issue a PFA Order based exclusively upon
    those past incidents, nor were we prepared to base our analysis
    of the incident on April 14, 2019 entirely upon what had occurred
    in the past. Still, we did not, as [Mother] asserts, ignore the past
    history between [Father] and his children.
    Trial Ct. Op., dated 7/15/19, at 3. As evidenced by its findings regarding
    Father’s alcohol abuse, the trial court properly considered past incidents of
    abuse to analyze whether the present allegations in the PFA Petition rise to
    the level of abuse under the PFA Act. As stated above, we decline to reweigh
    the evidence or usurp the credibility determinations of the trial court. See
    
    Karch, 885 A.2d at 537
    . Accordingly, we find no abuse of discretion.
    In her third and final issue on appeal, Mother claims that the trial court
    erred when it considered, in its May 10, 2019 Opinion, the “life-altering
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    implications of declaring that abuse exists.” Mother’s Br. at 18 (citing Trial
    Ct. Op., filed 5/10/19, at 5). Mother argues that the trial court “established
    a de-facto balancing test, weighing the danger existing in a domestic violence
    environment with the life-altering implications of declaring that abuse exists”
    rather than determining if Mother demonstrated abuse under the PFA Act by
    a preponderance of the evidence. Mother’s Br. at 18. This argument is devoid
    of merit.
    In its May 10, 2019 Opinion, the trial court clearly articulated the
    applicable law and made a finding that the incident in question did not rise to
    the level of “abuse” under Section 6102 of the PFA Act. See Trial Ct. Op.,
    filed 5/10/19, at 4, 10. Mother’s effort to isolate a single sentence from the
    trial court’s Opinion, out of context, is disingenuous. Our review indicates that
    the court did not create a balancing test or add a new element to the existing
    PFA Act. Rather, in its Opinion, the trial court included some dicta, which
    emphasized how difficult it was for the court to decide PFA cases, but
    explained that the court has a duty to follow the law:
    Discerning the difference between actionable abuse and the
    behavior that is unfortunate but insufficient to trigger PFA relief
    can be agonizingly difficult for a [c]ourt. At all times, we must be
    aware of the danger that inevitably exists in any domestic violence
    environment. At the same time, we also have to be cognizant of
    the sometimes life-altering implications of declaring that abuse
    exists. Always, a [c]ourt must do its duty to follow the law
    as it exists as opposed to how we sometimes would want
    it to exist. Accomplishing justice in a PFA arena can sometimes
    feel like “Mission: Impossible.”
    Trial Ct. Op., filed 5/10/19, at 5 (emphasis added). We find no error.
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    In sum, the trial court did not commit an error of law or abuse its
    discretion when it denied Mother’s PFA Petition.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 03/09/2020
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Document Info

Docket Number: 954 MDA 2019

Filed Date: 3/9/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024