D.D. v. A.D.H. ( 2020 )

J-A05029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
A.H. :
:
Appellant :
:
: No. 1434 WDA 2019
Appeal from the Order Entered September 10, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): FD 07-008810
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED MARCH 10, 2020
A.H. (“Father”) appeals pro se from the September 10, 2019 order
awarding D.D. (“Mother”) primary physical custody of their daughters, G.H.
and C.H. We affirm.
Mother and Father married in 2000, separated in 2007, and divorced in
2010. G.H. and C.H. were born of the marriage in July 2004, and November
2005, respectively. The trial court summarized the contentious custody
litigation as follows:
The case has a long and tortured history. Since separation,
the parties had followed a 2-2-5-5 schedule with Mother having
Monday and Tuesday and Father having Wednesday and
Thursday. Throughout the early periods, the parties had constant
disagreements about the children’s activities, including payment
for the activities. At some point, the [c]ourt curtailed Father’s
Sunday nights as there was evidence that the children were
having trouble getting ready for school on Mondays. The original
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A05029-20
custody trial was held in October 2016, and January 2017.
Following the trial, the [c]ourt kept the physical shared custody
order in place but granted Mother sole legal custody for all medical
decisions and for educational, and extra-curricular activities. [The
Superior Court affirmed the custody order, and our Supreme Court
denied review.]
Father filed a Petition for Modification in [s]pring 2018 and
a judicial conciliation was held in June 2018. At that time, the
Court had grave concerns about Father’s mental and emotional
health and ordered Dr. Joseph A. Greenburg, [Ph.D.] of Allegheny
Forensic Associates to conduct a full psychological evaluation as
to Father. Dr. Greenburg had previously done a custody
evaluation in this case for the prior trial. Mother filed a Petition
for Modification in September 2018 based on the children’s
constant requests to limit their time with Father. Mother
requested an emergency conciliation at that time to address the
children’s concerns about their custody time with Father. The
children were extremely upset with the current custody
arrangement and Mother requested that, at least on an
emergency basis, the order be changed to Father having custody
every other weekend.
The [c]ourt met in camera with each child separately. They
expressed grave concerns about Father’s behavior, including his
obsession with their health, his unwillingness to let them spend
time with friends, and his refusal to listen to them and consider
their opinions. One child relayed sobbing sessions during which
Father told them that Mother is “taking the children away from
him.” Both expressed a strong and unequivocal preference to live
primarily with Mother and begged the [c]ourt to make the custody
change. The [c]ourt entered an interim order changing Father’s
custody to every other weekend and set the matter for trial.
. . . Trial of the action was heard on October 29, 2018, December
5, 2018 and June 12, 2019. The children were interviewed on July
2, 2019. Dr. Greenburg filed his psychological evaluation on
February 28, 2019. After considering all the testimony and
evidence, the [c]ourt determined that it was in the best interest
of the children to live primarily with Mother and for Father to have
custody every other weekend. On September 10, 2019, the
[c]ourt issued its Background and Order setting forth the
reasoning for its decision including a detailed discussion of the
sixteen custody factors which the [c]ourt is required to consider
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J-A05029-20
when making a custody determination. The vast majority favored
Mother.
Trial Court Opinion, 11/4/19, at 1-3 (italics supplied).
Father filed a timely notice of appeal and a Pa.R.A.P. 1925(b) statement
that enumerated fifty-five assertions, including subparts, and an exhaustive
criticism of the trial court’s best-interest determination. The trial court issued
a comprehensive opinion that condensed Father’s rambling complaints into
three manageable issues.
On appeal, Father presents thirty-four declarations, most of which are
scurrilous accusations against the trial court, and renews his critique of the
trial court’s best-interest analysis. Father’s brief at 8-13, 24-44. In contrast,
Mother argues succinctly, “[t]he trial court carefully considered all testimony
and weighed that against the 16 custody factors.” Mother’s brief at 8.
At the outset, we address whether Father’s issues are preserved for our
review. An appellant waives all matters for review where he identifies an
excessive number of issues in the concise statement. See Jones v. Jones,
878 A.2d 86 (Pa.Super. 2005) (holding that a seven-page, twenty-nine issue
statement resulted in waiver). While Rule 1925(b)(4)(iv) provides that the
sheer number of issues is not sufficient grounds to find waiver “[w]here non-
redundant, non-frivolous issues are set forth in an appropriately concise
manner[,]” that concession does not negate the requirement that the Rule
1925 statement facilitate appellate review. See also Kanter v. Epstein, 866
A.2d 394, 401 (Pa.Super. 2004) (holding that “[b]y raising an outrageous
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J-A05029-20
number of issues” in a Rule 1925(b) statement, an appellant impedes the trial
court’s ability to prepare an opinion addressing the issues on appeal, thereby
effectively precluding appellate review). As outlined supra, the trial court was
able to distill Father’s litany of unfounded complaints into three lucid
arguments concerning alleged due process violations, Mother’s parental
fitness, and parental alienation. Any claim asserted on appeal that is not
subsumed within one of the foregoing arguments is waived.
We review the child custody order according to the following scope and
standard of review:
This Court reviews a custody determination for an abuse of
discretion. In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We
will not find an abuse of discretion “merely because a reviewing
court would have reached a different conclusion.” Id. (citation
omitted). Rather, “[a]ppellate courts will find a trial court abuses
its discretion if, in reaching a conclusion, it overrides or misapplies
the law, or the record shows that the trial court’s judgment was
either manifestly unreasonable or the product of partiality,
prejudice, bias or ill will.” Id.R.L. v. M.A., 209 A.3d 391, 395 (Pa.Super.2019).
Moreover,
on issues of credibility and weight of the evidence, we defer to the
findings of the trial [court] wh[ich] has had the opportunity to
observe the proceedings and demeanor of the witnesses.
The parties cannot dictate the amount of weight the trial court
places on evidence. Rather, the paramount concern of the trial
court is the best interest of the child. Appellate interference is
unwarranted if the trial court’s consideration of the best interest
of the child was careful and thorough, and we are unable to find
any abuse of discretion.
A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (citations omitted).
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J-A05029-20
After a thorough review of the certified record, the parties’ briefs, and
the pertinent law, we discern no abuse of discretion on the part of the trial
court as to the issues raised by Father, and we affirm the custody order on
the basis of the cogent and well-reasoned opinion that the Honorable Kim D.
Eaton entered on November 4, 2019.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2020
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Circulated 02/28/2020 03:06 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
NO. F.D. 07-008810-006
PLAINTIFF
1434 WDA 2019
.H ..
VS.
Al
OPINION
DEFENDANT
HONORABLE KIM D. EATON
COPIES SENT TO:
COUNSEL FOR PLAINTIFF:
CORY SIRI, ESQ.
2125 FREEPORT ROAD
NATRONA HEIGHTS, PA 15065
(724) 226-0671
DEFENDANT, PRO SE:
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IN THE COI.JRT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
Dl9DS [. NO. F.O. 07-008810-006
PLAINTIFF
1434 WDA 2019
vs.
Al SH ..,
DEFENDANT
OPINION
Defendant/appellant A..., H .. (Father) appeals this Court's Order dated September
10, 2019 granting plaintiff/appellee D. oa 's (Mother) request for modification of the
shared custody order for the parties' two children, G .. DOB 7 Ja/2004 (age 15) and (9,
DOB 11/e/2005 (age 13).
The case has a long and tortured history. Since separation, the parties had followed a 2-
2-5-5 schedule with Mother having Monday and Tuesday and Father having Wednesday and
Thursday. Throughout the early periods, the parties had constant disagreements about the
children's activities, including payment for the activities. At some point, the Court curtailed
Father's Sunday nights as there was evidence that the children were having trouble getting ready
for school on Mondays. The original custody trial was held in October 2016, and January 2017.
Following the trial, the Court kept the physical shared custody order in place but granted Mother
sole legal custody for all medical decisions and for educational, and extra-curricular activities.
Father filed an appeal to the Superior Court, which affirmed the trial Court. His further appeal to
the Supreme Court was denied.
Father filed a Petition for Modification in Spring 2018 and a judicial conciliation was held
in June 2018. At that time, the Court had grave concerns about Father's mental and emotional
health and ordered Dr. Joseph A. Greenburg, PhD of Allegheny Forensic Associates to conduct a
full psychological evaluation as to Father. Dr. Greenburg had previously done a custody
evaluation in this case for the prior trial. Mother filed a Petition for Modification in September
2018 based on the children's constant requests to limit their time with Father. Mother requested
an emergency conciliation at that time to address the children's concerns about their custody
time with Father. The children were extremely upset with the current custody arrangement and
Mother requested that, at least on an emergency basis, the order be changed to Father having
custody every other weekend.
The Court met in camera with each child separately. They expressed grave concerns
about Father's behavior, including his obsession with their health, his unwillingness to let them
spend time with friends, and his refusal to listen to them and consider their opinions. One child
relayed sobbing sessions during which Father told them that Mother is "taking the children away
from him". Both expressed a strong and unequivocal preference to live primarily with Mother
and begged the Court to make the custody change. -The Court entered an interim order changing
Father's custody to every other weekend and set the matter for trial.
Trial was delayed when the Court-appointed expert filed his psychological report which
was an "updated" custody evaluation rather than the psychological evaluation of Father that had
2
been ordered. Trial of the action was heard on October 29, 2018, December 5, 2018 and June
12, 2019. The children were interviewed on July 2, 2019. Or. Greenburg filed his psychological
evaluation on February 28, 2019. After considering all the testimony and evidence, the Court
determined that it was in the best interest of the children to live primarily with Mother and for
Father to have custody every other weekend. On September 10, 2019, the Court issued its
Background and Order setting forth the reasoning for its decision including a detailed discussion
of the sixteen custody factors which the Court is required to consider when making a custody
determination. The vast majority favored Mother.
Father timely appealed. The Court issued an order pursuant to Pa.R.A.P. 192S(b)
directing Father to file a Concise Statement of Matters Complained of on Appeal (Statement).
Pa.R.A.P. 192S(b)(4) provides that the Statement shall set forth only those errors that the
appellant intends to assert and concisely identify each error with sufficient detail to identify the
issue to be raised for the judge. Pa.R.A.P. 1925(b)(4)(i)(ii}.
On October 2, 2019, Father filed a ten-page document which purported to raise fifty-
two enumerated matters, including sub-parts, and included a lengthy narrative of how the
Court erred in its findings as to each of the 16 custody factors. Pa.R.A.P. 1925(b) is not satisfied
by simply filing any Statement. Rather, the Statement must be sufficiently "concise" and
coherent to permit the trial court to understand the specific issues being raised on appeal.
Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super. 2004). By raising an outrageous number of
issues, the majority of which are unrelated to the Court's decision and contain vicious personal
attacks and unfounded accusations of wrongdoing against Mother, the Court and Dr.
Greenburg, Father has circumvented the meaning and purpose of Rule 1925(b). As Father is
3
representing himself, rather than deeming all matters waived, the Court will address what it
can discern to be the matters that Father intended to raise in his Statement.
Father contends that the Court denied him his 14th Amendment rights by sustaining
objections to portions of his testimony and refusing to admit into evidence unsubstantiated
medical records and studies. A large part of Father's case was directed to proving that the
children suffer from severe medical issues which Mother is ignoring or neglecting. Father
continues to be obsessed with G.-.s weight. He is concerned that C-is suicidal and overly
medicated. Father testified, without any medical support, that G .. has terminal liver
disease. Father offered no proper evidence of medical records, nor any appropriate expert
report or expert testimony to support his concerns. Rather, Father claimed to be an expert in
health care and repeatedly attempted to offer his professional opinion of the children's medical
issues. Alternatively, he attempted to introduce his own testimony of what doctors told him.
Father repeatedly claimed that the Court was violating his due process rights by sustaining
Mother's objections to such evidence. He made no serious attempt to qualify himself as an
expert.
Another matter raised by Father is that the Court erred by not granting him physical
custody because Mother is an unfit parent. Father contends that Mother either physically
abuses them or allows them to be abused by others and that she refuses to acknowledge and
address their serious illnesses. There was no evidence whatsoever of any child abuse. The
overwhelming evidence established that Mother, a physician, is properly addressing and caring
for the children's medical issues. Dr. Greenburg conferred with each of the children's treating
4
physicians identified by Father, including G�s liver doctor, and all concurred that there are
no life-threatening conditions and that Mother is managing their care well. All their doctors
gave Dr. Greenburg glowing reports of Mother's care for the children. Dr. Greenburg testified
that Mother does an excellent job dealing with the children's medical issues. Father responded
to Dr. Greenburg's testimony by challenging his qualifications as an expert and accusing him of
violating the law and of fraud. Dr. Greenburg has been qualified as an expert to testify in
custody matters in Allegheny County for many years. He has conducted over 100 evaluations.
He is unquestionably qualified.
Another matter raised is that the Court failed to find that the children's preference is the
result of Mother's efforts to alienate the children from Father for years. Father refuses to accept
any responsibility for the children's preference to live with Mother. He blames this entirely on
Mother. The Court found the evidence to be the contrary. Despite Father's constant verbal
attacks against Mother, his reports to CYF and law enforcement, Mother has done everything in
her power to ensure the children have a positive relationship with Father. Father, on the other
hand, has openly attacked Mother verbally and involves the children in the custody disputes.
Father often verbally abuses Mother.
Dr. Greenburg testified that Mother is going to great lengths not to alienate the children
from Father. She encourages them to stay at his house when they want to leave. She does not
disparage Father in front of the children. Rather, it is the living conditions at Father's house and
his behavior that concerns them. Father's desire to be "right" has driven the children away. They
complain that he refuses to listen to them in any way. They begged the Court to keep the custody
arrangement at every other weekend as it was more "peaceful", and they can enjoy their friends.
5
The children both explained the reasons for preferring to live with Mother. The
interview with the children was nothing short of painful. Father insisted on being in the room,
staring at each child during testimony. At first, the children expressed "neutral" reasons for
their preference - Father's house was too far from their friends, etc., which the Court presumes
is their attempt not to hurt Father. However, when pressed, the children's preference was as
strong as the Court has ever seen. Their complaints ranged from the condition of Father's
house (the cats urinate on their clothes and other items and Father doesn't seem to care), to
Father's sobbing breakdowns about them "leaving him", to Father's refusal to let them spend
time with their friends during "his" time. Both children expressed a strong and unequivocal
preference to live with Mother for well-grounded reasons
This is a very high conflict case; fueled almost completely by Father's constant litigation,
excessive emails, and his demands that Mother accede to his demands for medical tests and
procedures for the Children. Mother, on the other hand, has done everything in her power to
maintain the peace for the children, turning to the Court only when absolutely necessary, or as
occurred in this action, when the children have begged her to go to Court to change custody.
For the foregoing reasons, and for reasons set forth in the Court's September 10, 2019
Background and Order, the Court determined that it was in the best interest of the children to
reside primarily with Mother.
il:1./_,_L_f_f __
Date:____._ f .
TI
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