Smiley, H. v. Smiley, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
HOLLIANN SMILEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHRISTOPHER SMILEY : No. 126 WDA 2023
Appeal from the Order Entered December 28, 2022
In the Court of Common Pleas of Lawrence County
Civil Division at No(s): 12035 of 2009 C.A.
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: October 2, 2023
Holliann Smiley (“Mother”) appeals from the December 28, 2022 order
awarding Christopher Smiley (“Father”) primary physical custody of Parents’
two minor sons (born in 2006, and 2008) (collectively, “Children”). We affirm.
Parents have been involved in extensive custody proceedings regarding
Children since 2009. In September 2012, the trial court entered an order
awarding the parents shared legal custody and awarding Mother primary
physical custody, with Father exercising physical custody every other weekend
and one weeknight each week. A guardian ad litem (“G.A.L.”) was appointed
around December 2017. Despite a few petitions for contempt and petitions for
modification, the 2012 custody order remained in effect until January 2022.
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* Former Justice specially assigned to the Superior Court.
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On January 4, 2022, Father filed a pro se emergency petition for special
relief, in which he requested temporary physical and legal custody of Children,
along with a psychological evaluation for Mother, asserting Children were
afraid to go back to their mother. As Father had counsel of record, the trial
court responded that it could not entertain the pro se petition. A few days
later, Mother filed a petition for special relief and return of minors. In the
petition, Mother alleged Father had kept Children since Christmas, despite
Mother having primary physical custody.
The trial court held a hearing on January 12, 2022. The record does not
reveal what transpired during the hearing, but following the hearing the trial
court entered an interim order, wherein it ordered Parents to share physical
custody on a day on/day off basis. The interim order also directed Mother to
participate in counseling with children.
A week later, Father filed a petition for modification of the custody order,
in which he sought primary physical custody and shared legal custody of
Children.
On January 26, 2022, Mother filed a petition seeking to hold Father in
civil contempt of court, again asserting that Father refused to return Children
after Christmas day in violation of the 2012 custody order.
Thereafter, in March 2022, a custody conciliation conference was held,
which was unsuccessful. Similarly, settlement negotiations at a June 2022
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pretrial conference were unsuccessful. Following the conference, the court
modified physical custody to reflect a custody schedule on a 4-3-3-4 basis.
In September 2022, Mother’s prior counsel filed a petition to withdraw,
which was granted the same day. Shortly thereafter, Mother’s current counsel
entered his appearance in this matter. The court then ordered that the custody
trial be expedited to begin on September 26, 2022.
On that date, testimony was heard from Father and one of Children.
Mother, the G.A.L., and the other child were also present. At the end of the
hearing, the court recessed in order to continue the trial another day. After a
few continuances, the trial was scheduled to continue on December 12, 2022.
Just prior to the start of the trial on December 12, 2022, the G.A.L. filed
her report and recommendations. On the second day of trial, Father testified
on his own behalf, followed by testimony from Father’s fiancé and the other
child.
Father then called the G.A.L. as a witness. See N.T., 12/12/22 at 17.
Mother immediately objected on the basis that the G.A.L. was not listed as a
witness in Father’s pretrial statement. See id. at 17-18. Notably, a review of
the record shows that the G.A.L. was not listed anywhere in Father’s pretrial
statement, either as a witness or under the exhibits portion. See Father’s
Pretrial Statement, 7/12/22. Mother further objected on the basis that she
had only received the G.A.L.’s report that same morning and therefore she did
not have an opportunity to challenge the report. See N.T., 12/12/22, at 18.
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The trial court overruled the objection and allowed the G.A.L. to testify,
stating the G.A.L. had participated in hearings in this matter in the past. The
court noted that many of these hearings had occurred prior to Mother’s current
counsel entering his appearance. However, the court indicated the G.A.L.’s
involvement with the case must have been included in the case notes given
to current counsel. Following the G.A.L.’s testimony, Mother testified on her
own behalf.
Following the custody hearing, the trial court entered an opinion and
order, in which it addressed all of the required custody factors and ordered
that Mother and Father continue sharing legal custody, but directed that
Father have primary physical custody and Mother have partial physical
custody. Mother filed this timely appeal.
Mother raises the following issues for our consideration:
1. The court abused its discretion and committed an error of law
by changing the existing custody order on January 12, 2022 to a
shared physical custody arrangement without a petition for
modification or a request pursuant to a motion for special relief
and without determination of custody factors.
2. The court abused its discretion in awarding [] primary physical
custody to [Father] as the Court found factors favoring [F]ather
that are not supported by the record.
3. The court [erred] in allowing the [G.A.L.] to testify as to the
[G.A.L.] report filed on December 12, 2022.
Appellant’s Brief at 9.
Our standard of review in this matter is deferential:
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Our standard of review over a custody order is for a gross
abuse of discretion. Such an abuse of discretion will only be found
if the trial court, in reaching its conclusion, overrides or misapplies
the law, or exercises judgment which is manifestly unreasonable,
or reaches a conclusion that is the result of partiality, prejudice,
bias, or ill-will as shown by the evidence of record.
In reviewing a custody order, 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 trial court 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.
Rogowski v. Kirven, 291 A.3d 50, 60-61 (Pa. Super. 2023) (brackets,
internal citations and quotations omitted).
As with all custody-related matters, this Court’s “paramount concern is
the best interest of the child involved.” Id. at 61 (brackets, internal citation
and quotation omitted). As such, Pennsylvania law provides that the trial court
is only empowered to change an existing custody order if the modification will
“serve the best interest of the child.” 23 Pa.C.S.A. § 5338(a).
To that end, the Child Custody Act sets forth sixteen factors at 23
Pa.C.S.A. § 5328(a) that a court must consider prior to modifying an existing
custody order. See E.B. v. D.B., 209 A.3d 451, 460 (Pa. Super. 2019). While
a court’s consideration of these factors is mandatory, “[i]t is within the trial
court’s purview as the finder of fact to determine which factors are most
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salient and critical in each particular case.” Id. (internal citation omitted). In
order to evidence its consideration of these required elements, trial courts
must set forth a discussion of these best-interest factors “prior to the deadline
by which a litigant must file a notice of appeal.” A.V. v. S.T., 87 A.3d 818,
820 (Pa. Super. 2014).
Here, the trial court provided a timely and complete assessment of the
Section 5328(a) factors in its custody opinion and order. See Trial Court
Opinion and Order, 12/28/2022. The trial court determined that the factors at
Section 5328(a)(2), (3), (4), (5), (6), (11), (12), (14), and (15) were neutral
and favored neither party. Meanwhile, the trial court concluded that the
factors at Section 5328(a)(1), (7), (8), (9), (10), and (13) favored Father.
Finally, the trial court did not recognize any other relevant factors pertaining
to either party with respect to Section 5328(a)(16).
Mother’s first issue relates to the trial court’s modification of the physical
custody schedule in the interim order entered on January 12, 2022, wherein
the trial court changed Mother’s physical custody from primary to shared.
Mother argues the trial court erred by making custody modifications that were
not directly requested by either Mother or Father, and without consideration
of the custody factors. See Mother’s Brief, at 16.
Preliminarily, we consider whether the interim order was mooted by the
entry of the final order entered following trial. “[W]e may sua sponte raise the
issue of mootness, as we generally ‘cannot decide moot or abstract questions,
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nor can we enter a judgment or decree to which effect cannot be given.’” E.B.
v. D.B., 209 A.3d 451, 461 (Pa. Super. 2019) (citation omitted).
Here, the January 12, 2022 interim order was entered in response to a
hearing held on Mother’s petition for special relief and return of minors. The
interim order was later modified to reflect a shared custody schedule on a 4-
3-3-4 basis. The final custody order then expressly superseded all prior orders,
which included both interim orders.
Since the interim order is no longer in effect, Mother’s issue regarding
the interim order would appear moot. See E.B. v. D.B., 209 A.3d at 461.
However, we acknowledge that the interim custody order at issue altered the
existing custody arrangement. Specifically, prior to the interim order, Mother
had “primary physical custody” and Father had “partial physical custody”.
After the interim order, Parents had “partial shared custody”. Accordingly,
when the trial court issued the interim order, the court changed the award of
custody. The record does not reveal what transpired during the January 12,
2022 hearing, and no reasons for the change were provided in the interim
order. Without knowing what, if any, reasons were provided at the hearing,
and without such explanation in the interim order, we cannot say whether the
order violated Mother’s rights. However, even if we agreed with Mother, we
cannot grant relief.
This Court has previously addressed a trial court’s special relief power
to enter orders on an interim basis in custody matters.
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The Child Custody Act grants trial courts authority to enter into
orders on an interim basis, providing that the court ‘may issue an
interim award of custody to a party who has standing ... in the
manner prescribed by the Pennsylvania Rules of Civil Procedure
governing special relief in custody matters.’ In relevant part, the
rule governing special relief provides that ‘[a]t any time after
commencement of the action, the court may on application or its
own motion grant appropriate interim or special relief. The relief
may include, but is not limited to, the award of temporary legal or
physical custody[.]’ The official comment explains that the rule is
intended to be a ‘broad provision empowering the court to provide
special relief where appropriate.’
Id. at 463 (citations omitted). However, we noted that due process is still
required even when exercising special relief power. See id.In E.B., we concluded the trial court erred when it changed the parties’
custody arrangement from primary-partial physical custody to shared custody
pending a final custody hearing. Although the court had authority to act sua
sponte under Pa.R.C.P. 1915.13 (“Special Relief”), the court there violated
the father's right to due process because (1) the parties had no notice or
meaningful opportunity to be heard, (2) there was no emergency or urgent
need to preserve the well-being of the child, and (3) the parties’ custody
arrangement was already subject to a formal order, so there was no need for
an interim order to commemorate the status quo. However, we explained that
although the trial court erred, no relief could be provided:
[T]he relief that [the appellant-father] seeks is impossible to
achieve. [The appellant-father] asks us to vacate the interim
order, effectively re-setting the clock back to [two years prior].
This is tantamount to “unringing the bell” and rewinding the past
two years of the child's life as if they never happened.
Id. at 466-67 (citation omitted).
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Again, in the instant case, we are unable to tell from the record why the
trial court decided to change the custody schedule with the January 12, 2022
interim order. Even in its opinion, the trial court merely states the decision
was made as a result of “extensive discussion in chambers with Counsel and
the GAL earlier that day”. Trial Court Opinion, 2/2/2023, at 5. This is not
enough information to determine whether the interim order was a proper use
of the court’s special relief powers or whether the interim order violated
Mother's due process. Nevertheless, even if a violation occurred, we would be
unable to grant Mother relief. This Court simply cannot “unring the bell” or
rewind time. As such, Mother’s first issue is moot.1
In her second issue, Mother argues the trial court abused its discretion
in awarding primary physical custody to Father. Specifically, Mother argues
the trial court found custody factors favoring Father that are not supported by
the record. We disagree.
Here, the trial court addressed each of the custody factors in its custody
opinion and order, as required by Section 5328(a). See Trial Court Opinion
and Order, 12/28/2022. In discussing each factor, the trial court explicitly
decided whether that factor weighed in favor of either party or both parties
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1 In her contempt petition filed on January 26, 2022, Mother conceded that at
the January 12, 2022 hearing, she had agreed, along with Father, to move to
a day on/day off schedule so that Mother and Children could participate in
counseling together. See Contempt Petition, 1/26/2022, at 2. Due to our
disposition on this issue, we need not consider the effect of Mother’s apparent
consent to the temporary change.
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and explained its reasoning for reaching that conclusion. See id. It is clear
that while the trial court found many of the section 5328(a) factors to balance
equally between Parents, the trial court found that numerous factors favored
Father.
Mother argues the trial court abused its discretion in awarding primary
physical custody to Father by misapplying the custody factors outlined in 23
Pa.C.S.A. § 5328(a). Specifically, Mother argues custody factors 1, 3, 7, 8, 9,
10 and 13 were not adequately supported by the record. Mother disputes the
trial court's findings and determinations regarding those factors. The essence
of her argument, however, can be distilled down to a challenge to the
credibility and weight of the evidence, as well as the weight attributed to
certain factors.
Mother essentially asks this Court to re-find facts, re-weigh evidence,
and/or re-assess credibility to her view of the evidence, which we cannot do.
See D.R.L. v. K.L.C., 216 A.3d 276, 286 (Pa. Super. 2019) (stating it is not
this Court's role to re-find facts, re-weigh evidence, and re-assess credibility).
While Mother believes certain factors should have weighed in her favor, she
seems to misinterpret the function of the Section 5328(a) factors.
The custody factor analysis is not a scorecard, where the parent who
checks off the most factors wins custody. So long as the court considers all of
the factors, giving weighted consideration to those factors affecting the child’s
safety, see 23 Pa.C.S.A. § 5328(a), how the trial court balances the factors is
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within its discretion, depending on the particular facts of the case.
Importantly, while the trial court acknowledged Mother primarily provided for
Childrens’ daily needs for a majority of their life, it also emphasized that at
the current time, the Children would benefit from more custodial time with
Father.
We find no merit to Mother’s contention that the trial court misapplied
the factors enumerated in Section 5328(a). Rather, the court considered all of
the testimony, including determining the credibility of the witnesses and
assessing the weight of their testimony, and considered the custody factors
as outlined in Section 5328(a). After weighing those statutory factors, the
court arrived at a custody order that it determined, in its discretion, to be in
the best interests of Children. The trial court's findings and determinations are
supported by competent record evidence, and we will not disturb them.
In her final issue, Mother challenges the admission of the G.A.L.’s report
and testimony. Mother argues it was error for the court to admit the report
into evidence and allow the G.A.L. to testify about the report when the G.A.L.
failed to comply with the procedural aspects of Pa.R.C.P.1915.11-2(c).
Pursuant to Rule 1915.11–2(c), the guardian ad litem is required to file
and serve their report more than twenty days before the date set for the
custody trial. Mother contends this failure “violated [Mother’s] fundamental
right of due process[.]” Appellant’s Brief at 36. Here, it is undisputed that the
G.A.L. failed to file the report and recommendation until the second day of
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trial. While the proper procedure was clearly not followed here, we cannot
conclude that it was reversible error to allow the G.A.L. to testify.
“A question regarding whether a due process violation occurred is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018)
(citation omitted). The fundamental components of due process are “[f]ormal
notice and an opportunity to be heard[.]” Id. at 1161 (citation and emphasis
omitted). “[P]rocedural due process requires, at its core, adequate notice,
opportunity to be heard, and the chance to defend oneself before a fair and
impartial tribunal having jurisdiction over the case.” Id. (citation omitted).
“Due process is flexible and calls for such procedural protections as the
situation demands.” Id. (citation omitted).
Initially, we note there is no indication in the record that the trial court
assigned any weight to the report or recommendation. At the end of the trial,
the court noted it would review the testimony presented, and the report and
recommendations of the G.A.L.. See N.T., 12/12/2022, at 55. After double-
checking whether or not the report was entered into the record, Mother’s
counsel acquiesced to the court reading the report. See id. The trial court
clarified it would give the report the weight it deemed appropriate under the
circumstances. See id. at 56. The court then took the matter under
advisement, and issued its opinion in which the court properly analyzed the
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enumerated best-interest factors, without mentioning the G.A.L. or her report,
and its findings in favor of Father were consistent.
Further, Mother has not developed any argument that she was
prejudiced by this error. Mother was permitted to, and did, cross-examine the
G.A.L. regarding her testimony and statements that had been taken from the
report. See N.T., 12/12/2022, at 24-30. Mother was also able to respond to
the G.A.L.’s testimony during her own testimony. See id. at 41. Mother
explained her disagreement with certain elements of the G.A.L.’s testimony
and report. See id. at 41-42. However, Mother does not explain what she
would have done differently had the G.A.L. complied with Rule 1915.11-2(c).
See Appellant’s Brief at 33-36.
Based on the above, we cannot find it was reversible error for the trial
court to allow the G.A.L. to submit and testify about her report. Mother’s final
issue is without merit.
Order affirmed. Jurisdiction relinquished.
DATE: 10/02/2023
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