B.G. v. S.G. ( 2021 )

J-S11035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
S.G. : No. 1012 WDA 2020
Appeal from the Order Entered August 28, 2020
In the Court of Common Pleas of Butler County Civil Division at No(s):
F.C. No. 17-90802-C
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: APRIL 14, 2021
Appellant, B.G. (“Father”), appeals from the custody order entered
August 28, 2020. Appellee, S.G. (“Mother”), has filed a motion to quash
Father’s appeal. After careful review, we affirm the custody order and deny
Mother’s motion to quash.
In its opinions, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. See Trial Court Opinion (“TCO”),
dated August 28, 2020, at 1-17; TCO, dated December 18, 2020, at 1-18.
Therefore, we have no reason to restate them at length here.
For the convenience of the reader, we briefly note:
Mother and Father met when Mother was still in high school.
Father was eight years older than Mother. Mother and Father
began dating shortly after meeting. At some point, Mother and
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* Retired Senior Judge assigned to the Superior Court.
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Father signed a common law marriage document so that Mother
could be added to Father’s health insurance. Mother and Father
married on September 26, 2003.
TCO, dated August 28, 2020, at 1. The parties had two biological children,
P.G., born in 2006, and G.G., born in 2011 (collectively, “Children”). The
parties divorced and executed a martial settlement agreement on
November 28, 2017, which included a custody arrangement. On
September 10, 2019, Mother filed a complaint for modification of custody. The
parties attended a custody conciliation on December 2, 2019 and underwent
custody evaluations with Dr. Eric Bernstein, who recommended that Mother
have primary physical custody of Children, with Father having partial weekend
custody.
The trial court held a three-day trial on July 20 and 21 and August 14,
2020. At the trial,
Mother testified that when she and Father were married, Father
was scary and loud when he was mad. She stated that she never
knew when he was going to get mad and she tried to avoid making
him angry. She testified that he had ripped a door off its hinges,
threw things, and punched holes in the doors.
TCO, dated December 18, 2020, at 3.
On August 28, 2020, the trial court entered an order1 granting sole legal
custody and primary physical custody of Children to Mother. Father’s periods
of physical custody are as follows:
During the school year, Father shall exercise custody of Children
every other weekend from Friday at 6:00 p.m. until Sunday at
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1 The order was accompanied by a memorandum opinion.
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6:00 p.m. On the off week, Father shall have custody of Children
on Wednesday night from 5:00 p.m. until 7:00 p.m.
During the summer, Father shall exercise custody of Children
three out of every four weekend.
Order, 8/28/2020.
Mother was also ordered to enroll in individual counseling.
Children were additionally Ordered to enroll in counseling and
Mother and Children were to enroll in family therapy. Father was
not ordered to enroll in therapy, as he seemed unwilling at trial to
participate and any indication that he would participate was
[found] not credible [by the trial court]. However, th[e trial c]ourt
encouraged Father to attend individual counseling of his own
volition.
TCO, dated December 18, 2020, at 1-2.
On September 25, 2020, Father filed his notice of appeal and statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).2 On
February 19, 2021, Mother filed a motion to quash Father’s appeal, asserting
that Father’s appellate brief was materially defective in several respects,
including that Father failed to serve Mother with the brief contemporaneously
to when he filed it with this Court. Father responded that he properly served
Mother when his counsel e-mailed the brief to Mother’s counsel. As Mother
was able to file a complete, comprehensive brief with this Court, we find that
she was not prejudiced by any alleged defects with Father’s brief and that our
ability to review has not been substantially hampered by any potential
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2 On December 18, 2020, the trial court entered an opinion pursuant to
Pa.R.A.P. 1925(a).
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procedural errors; accordingly, we decline to quash Father’s appeal. See
Fulano v. Fanjul Corp., 236 A.3d 1, 12 (Pa. Super. 2020) (under Pa.R.A.P.
2101, even when the defects in an appellate filing an substantial, “quashing
an appeal is not mandatory[,]” especially where our review “is not
substantially hampered” by the failure to conform to the Rules of Appellate
Procedure).3
Father now presents the following issues for our review:
1. Whether the trial court erred in finding Mother’s testimony
to be credible and Father not credible when there were
contradictory statements in Mother’s testimony.
[2.] Whether the trial court erred in concluding that Mother be
granted primary custody of [C]hildren when many of the custody
factors[4] did not weigh in favor of one party over another.
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3 On February 25, 2021, Father filed a motion to strike Mother’s appellate
brief, which this Court denied on March 2, 2021.
4 In ordering any form of custody, the court shall determine the
best interest of the child by considering all relevant factors, giving
weighted consideration to those factors which affect the safety of
the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
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(2.1) The information set forth in section 5329.1(a) (relating
to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
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[3.] Whether the trial court erred in ordering a custody schedule
wherein Father’s custodial time was decreased from a shared
every-other-week to every-other-weekend, when both Mother
and the expert testified that there is no schedule that would
resolve Mother and Father's inability to communicate and co-
parent.
4. Whether the trial court erred in concluding that [C]hildren
were not at risk of harm in Mother’s custody when testimony
revealed that during the summer, Mother left [C]hildren
unsupervised when she left for work and all day while she was
working.
5. Whether the trial court erred in reaching a conclusion that
stripped Father of all legal custody and the majority of physical
custody time when Father testified at trial that he was willing to
actively participate in counseling.
Father’s Brief at 9 (issues re-ordered to facility disposition).
“In reviewing a custody order, our scope is of the broadest type and our
standard is abuse of discretion.” D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.
Super. 2014) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).
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.
Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citations and
internal quotation marks omitted). Additionally, when reviewing a custody
order:
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(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
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We must accept findings of the trial court that are supported by
competent evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately, the
test is whether the trial court’s conclusions are unreasonable as
shown by the evidence of record. We may reject the conclusions
of the trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial court.
D.K., 102 A.3d at 478 (quoting J.R.M., 33 A.3d at 650).
Preliminarily, we observe that Father repeatedly requests that this Court
ignore its scope and standard of review. Although the trial court “found
Mother to be credible and forthright during her testimony[,]” TCO, dated
December 18, 2020, at 27, Father’s first claim is that “[t]he trial court erred
in finding Mother’s testimony to be credible . . . when there were contradictory
statements in Mother's testimony.” Father’s Brief at 29. In doing so, he is
asking this Court to disregard the credibility and factual findings of the trial
court and to make independent factual determinations, which we cannot and
will not do. D.K., 102 A.3d at 478.
We further note that Father seems to equate Mother’s trial testimony
that she did not recall or remember what she reported about Father’s behavior
in the past with being “contradictory” to those prior statements, see, e.g.,
Father’s Brief at 30-31, which is not necessarily true -- Mother could have had
genuine lapses in memory about what she said in the past about him, without
stating anything in opposition to her earlier statements. Again, such
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determinations are the prerogative of the trial court, as fact-finder.5 D.K.,
102 A.3d at 478.6
Next, Father broadly asserts that “[t]he trial court erred in concluding
that Mother be granted primary custody of [C]hildren when many of the
custody factors did not weigh in favor of one party over another.” Father’s
Brief at 36. As for Father’s more specific claims, he argues that --
[t]he trial court erred in ordering a custody schedule wherein
Father’s custodial time was decreased from a shared every-other-
week to every-other-weekend, when both Mother and the expert
testified that there is no schedule that would resolve Mother and
Father’s inability to communicate and co-parent.
Id. at 32.7 After a thorough review of the record, the briefs of the parties,
the applicable law, and the well-reasoned opinions of the Honorable
Kelley T.D. Streib, we conclude Father’s challenge merits no relief. The trial
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5 The trial court found that, “[i]f, in fact, there were any contradictory
statements [by Mother] the[y] were de minimis.” TCO, dated December 18,
2020, at 27.
6 Although Father also baldly alleges that “[t]he trial court erred in finding . . .
Father not credible[,]” Father’s Brief at 9, 29, he fails to develop any argument
about his own credibility, instead choosing to focus entirely on attacking
Mother’s veracity. See id. at 29-32. By failing to develop any argument, this
issue is waived. Commonwealth v. Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011)
(without a “developed, reasoned, supported, or even intelligible argument[,
t]he matter is waived for lack of development”); Kelly v. Carman Corp., 229
A.3d 634, 656 (Pa. Super. 2020) (citations omitted). Assuming it were not
waived, we would find it meritless on the basis of the analysis in the trial
court’s Rule 1925(a) opinion. TCO, dated December 18, 2020, at 27-29.
7 This challenge is related to the first custody factor, “[w]hich party is more
likely to encourage and permit frequent and continuing contact between the
child and another party.” 23 Pa.C.S. § 5328(a)(1).
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court comprehensively discussed the parties’ communication issues. In its
memorandum accompanying the custody order, the trial court wrote:
Mother and Father are incapable of communicating with each
other. Both parties are responsible for involving the Children in
the issues that they have with each other, however it appears that
Father has purposefully taken actions that lead to alienation
between the Children and Mother. G.G.’s behavioral problems
have gotten so bad that G.G. is beginning to reject anyone he
views as tied to Mother. P.G. and Mother testified that they
believed the reason G.G. rejects Maternal Grandmother and
Mother’s Boyfriend is because of what Father is saying to G.G.
Regardless, it is clear that G.G. is under enormous stress and tries
to please his Father.
Because of the parties’ inability to effectively communicate with
each other and Father’s desires to communicate less with Mother
and not be in close proximity with Mother, shared custody is not
a viable option at this time. Dr. Bernstein opined that if Father
were given primary custody of Children, Mother’s position would
be marginalized in caring for Children. Father has told Mother that
he would never co-parent with her and wanted the opposite of
whatever she wanted. Father testified that Children have daily
contact with Mother and that he makes them call her. Contrary
to that testimony, Mother and Children indicated that they do not
have much contact when Children are in Father’s custody.
Father is unlikely to encourage and permit frequent and continuing
contact with Children and Mother. Therefore, this factor weighs in
favor of Mother having primary custody.
TCO, dated August 28, 2020, at 19. In its Rule 1925(a) opinion, the trial court
further explained:
Dr. Bernstein gave thorough recommendations and he
recommend[ed] that Mother have primary physical custody of
Children with Father having partial weekend custody.
Additionally, Dr. Bernstein recommended that all communication
occur through Our Family Wizard[8] and that Mother and Father
undergo counseling with a therapist that has professional training
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8 “Our Family Wizard” is a custody and co-parenting web site and app.
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in domestic violence and understands the need for safety, while
prioritizing boundaries and enforcement of boundaries. He also
recommended that Children participate in individual therapy and
Mother participate in individual therapy, focusing on increased
confidence, self-esteem, self-worth, and self-awareness and
creating and enforcing boundaries; Dr. Bernstein noted that while
co-parenting was a goal, it was unlikely to work at this time with
the level of conflict in this case. He also indicated that ideally, the
custody exchanges would occur at the parties’ homes, but because
of the behaviors and the “he said, she said,” a police station is
safer for all parties involved. He recommended that P.G. and G.G.
not be separated with different custody orders because the sibling
bond is the one stable bond that Children have. . . .
Father mischaracterizes Dr. Bernstein’s testimony. While it may
be true that no custody schedule would “resolve” Mother’s and
Father’[s] inability to communicate or co-parent, resolving
parental conflict is not the purpose of a custody schedule. The
[c]ourt must consider the best interest of Children. Unfortunately,
this high-conflict custody case requires the parties to seek
individual therapy to resolve the underlying issues which shapes
their inability to communicate and co-parent[.]
The totality of Dr. Bernstein’s testimony and opinion was that if
Father were given primary custody, Mother’s position as a parent
would be marginalized. Thus, he further opined that Mother
should have primary physical custody. . . .
Father’s hostilities toward Mother have not only made their ability
to co-parent nonexistent, but it is also harming Children. Father
is hostile toward Mother and all related to Mother, and he is
unlikely and frankly unwilling to encourage any continuing contact
between Children and Mother. He undermines Children’s
relationship with Mother at every turn, which is harmful to
Children. Thus, a decreased amount of parenting time was
necessary and in Children’s best interest.
TCO, dated December 18, 2020, at 30-31. Given the trial court’s well-
reasoned, comprehensive analysis based on the evidence of record, we find
no abuse of discretion. D.K., 102 A.3d at 478.
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Father next urges this Court to find that “[t]he trial court erred in
concluding that [C]hildren were not at risk of harm in Mother’s custody when
testimony revealed that during the summer, Mother left [C]hildren
unsupervised when she left for work and all day while she was working.”
Father’s Brief at 39. He continues that Mother “leaves for work very early in
the morning, leaving [P.G.] with the task of taking care of herself and [G.G.]”
Id. He maintains that, by contrast, “[d]uring [his] custodial time, he is
available and able to meet all of the physical, emotional, and financial needs
of the children, including, but not limited to, taking care of preparing meals,
entertaining [C]hildren, attending extracurricular functions,[9] cleaning the
house, and assisting with homework.” Id.Pursuant to our review of the record, we find that the trial court
acknowledged these concerns with Mother’s supervision of and ability to care
for Children. The trial court emphasized in its Rule 1925(a) opinion that it
“did not find that Children were safe while left alone in Mother’s custody.”
TCO, dated December 18, 2020, at 32. As it wrote in its memorandum
opinion:
Both parents are available or make child-care arrangements. Both
parents leave Children alone for periods of time; however, during
Father’s custody time, he is more cognizant that Children are not
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9 As discussed below, Father refuses to attend Children’s extracurricular
activities if Mother is going to be present. TCO, dated August 28, 2020, at
20.
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left alone for long periods of time. During Mother’s custody time,
she is more apt to leave Children alone and let them contact
Maternal Grandmother if they need something. This causes some
concern as P.G. should not be left to care for G.G. for eight or
more hours at a time on a regular basis when Mother is working.
Maternal Grandmother testified that she is willing to provide more
supervision of Children when Children are in Mother’s care.[10]
TCO, dated August 28, 2020, at 24. Consequently, the trial court was aware
of and gave proper consideration to these concerns when it crafted its custody
order. Ergo, its decision was not manifestly unreasonable, and we find no
abuse of discretion. Nobles, 150 A.3d at 113; D.K., 102 A.3d at 478.
Father additionally alleges “[t]he trial court erred in reaching a
conclusion that stripped Father of all legal custody and the majority of physical
custody time when Father testified at trial that he was willing to actively
participate in counseling.” Father’s Brief at 40. Again, the trial court
addressed the question of counseling:
As for individual counseling as recommended by Dr. Bernstein,
Father’s open hostility and lack of insight causes th[e trial c]ourt
to not order individual counseling for Father. Unless Father is
open to different perspectives, counseling will be unfruitful.
However, the [trial c]ourt strongly encourages Father to enroll in
individual therapy for the well-being of Children, who are clearly
hurting due to his behaviors. Without such counseling and
credible changes in behavior, Father may never experience the
parenting quality or time he claims to desire.
TCO, dated August 28, 2020, at 25-26. Again, the trial court considered this
evidence but reached a different conclusion than what Father wanted.
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10Maternal Grandmother already “oversees” Children; while she is not always
present in their home, she is available next door. TCO, dated December 18,
2020, at 32. Maternal Grandfather also provides childcare approximately
twice per month. Id.- 12 -
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Nevertheless, Father failed to demonstrate by any evidence of record, that the
trial court’s determination was based on partiality, prejudice, bias, or ill-will,
and we hence decline to find that the trial court abused its discretion. Nobles,
150 A.3d at 113; D.K., 102 A.3d at 478.
Father continues: “The trial court did not find that either parent was
incapable of caring for the children, that there was any issue with the home
of either parent or that either parent lacked concern for the children’s well-
being.” Father’s Brief at 36. Father’s statement does not accurately reflect
the record. Although the trial court found that both parents “do fun things
with Children during their custody time,” Father ignores that the trial court
also found that “Mother has been providing most of the care for Children[,]”
including “help[ing] Children with their homework” with “a lot of one-on-one
time with G.G.[,]” making and taking Children to “dental, doctor, and therapy
appointments” which “Father does not want . . . scheduled during his custody
time[,]” and “attend[ing] all of the extra-curricular activities Children
participate in.” TCO, dated August 28, 2020, at 20. Furthermore, Father’s
brief disregards that he “refuses to attend [Children’s extracurricular
activities] if Mother is going to be present.” Id. Finally, Father’s assertion
that he is capable of caring for Children is further called into doubt by the fact
the he did not take G.G. to the hospital when the child suffered a seizure;
Father chose “to go to a candy store instead” and “waited for Mother to take
G.G. to the hospital[.]” Id.- 13 -
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Finally, beyond any individual custody factors, the trial court is required
to “determine the best interest of the child[ren.]” 23 Pa.C.S. § 5328(a). After
a thorough review of the record and the briefs of the parties, we conclude that
the trial court did so. As the court comprehensively explained:
Th[e c]ourt’s concern in deciding the above matter is the best
interests of the child. It is not a tally board, the [c]ourt considers
all factors together to determine the best interest of Children. This
standard requires a case-by-case assessment of all the factors
that may legitimately affect the physical, intellectual, moral and
spiritual well-being of the child.” M.J.M. v. M.L.G., 63 A.3d 331,
334 (Pa. Super. 2013) (citing J.R.M. v. J.E.A., 33 A.3d 647, 650
(Pa. Super. 2011)). In weighing the factors, the [c]ourt was not
concerned with whom came out on top, the [c]ourt is not keeping
tally marks in a column, but rather, when taking the evidence as
a whole, what custody arrangement would best serve the well-
being of Children. Children are not happy, that much was
apparent at trial. They are conflicted. They are distressed. The
current custody arrangement is NOT in their best interest. Conflict
between Mother and Father is NOT in their best interest[].
Alienating behavior by Father is NOT in their best interest. G.G.
has very high anxiety and is emotionally withdrawn and
depressed. G.G. has been subjected to pressure to seek Father’s
approval and is afraid to say the wrong thing. P.G. is anxious.
Father alienates the parent-child boundary which forces Children
to choose sides. This has a negative impact on his children.
TCO, dated December 18, 2020, at 31-32 (emphasis in original) (footnote
omitted).
For the reasons set forth above, we conclude that Father has failed to
demonstrate an abuse of discretion. D.K., 102 A.3d at 478. Consequently,
we affirm the custody order and deny Mother’s motion to quash.
Order affirmed. Motion to quash denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2021
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