Stone, C. v. Stone, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINA STONE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC STONE :
:
Appellant : No. 96 EDA 2021
Appeal from the Order Entered November 24, 2020
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. A06-2018-60780-C
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 16, 2021
Eric Stone (“Father”) appeals pro se from the November 24, 2020 order,
which awarded Christina Stone (“Mother”) and Father joint legal custody of
H.S. (born in January of 2012), J.S. (born in December of 2013), and S.S.
(born in July of 2016) (collectively “Children” or “the Stone Children”), except
that Mother was granted sole legal custody of Children with respect to
psychological or psychiatric issues. The order further awarded Mother primary
physical custody of Children, subject to Father’s limited partial physical
custody rights in accordance with a schedule delineated in the order. After
careful review, we affirm.
Mother and Father married in October of 2011. They had three Children
together, before separating in October of 2017. Their divorce was finalized
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* Former Justice specially assigned to the Superior Court.
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on October 9, 2019. This was Father’s first marriage. Mother was previously
married for two years but did not have any prior children. Mother is a nurse
practitioner, employed in the area of Trenton, New Jersey. She is not currently
in a relationship and resides in the Pennsbury School District.
Father has a master’s degree in geology and works for an environmental
company in Newark, Delaware. He remarried in July of 2020 to Lisa McClain
(“Ms. McClain”). Ms. McClain has three children from a prior marriage to
Carlos Leiva: J.L. (11 years old), T.L. (9 years old), and J.L. (7½ years old)
(collectively “the McClain Children”). Father and Ms. McClain currently live in
the Neshaminy School District and are the parents of P.S. (born in February
of 2020).1
On May 21, 2018, a stipulated consent order was filed by the trial court,
which awarded Mother and Father shared legal custody of Children, and
awarded Mother primary physical custody of Children, subject to Father’s
partial physical custody. See Trial Court Order (“Custody Order”), 5/21/18,
at 1-3. Pursuant to the Custody Order, Father had custody every Monday and
Thursday evening following Mother’s custodial weekends, after work until 7:30
p.m., and on alternate weekends. Id. at 1-2 ¶¶ 4-5. The order also permitted
each party to have two, non-consecutive weeks’ vacation with Children per
year and provided for an alternating holiday schedule. Id. at 2-3 ¶¶ 6-12.
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1 P.S. is excluded from any reference to the McClain Children herein.
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Father filed a petition to modify the Custody Order in September of
2018, in which he sought shared physical custody of Children. Father averred
that he was moving into a three-bedroom apartment and that it would be in
Children’s best interest to spend an equal amount of time with both parents,
especially when the parties live in close proximity to each other. See Petition
to Modify Custody Order, 9/6/18, at 2. A custody conference was held on
October 11, 2018, at which time the Master recommended that the parties
participate in a custody evaluation with Court Conciliation and Evaluation
Service (“CCES”). A custody hearing was scheduled for January 17, 2019,
and continued to February 8, 2019. At the continued custody hearing, the
parties agreed to participate in Bucks County’s CCES program. They
completed the CCES evaluation on July 15, 2019. On October 7, 2019, Father
filed a motion requesting an expedited custody hearing, as the parties were
unable to reach an agreement during the CCES process.
On December 3, 2019, Mother filed an emergency petition to modify the
Custody Order, in which she averred Father secretly moved his paramour, Ms.
McClain, and the McClain Children into his three-bedroom apartment. Mother
sought to have Father found in contempt of the Custody Order and to enjoin
Father from allowing Children near the McClain Children, as Mother avers the
living arrangement at Father’s home had become physically dangerous and
had created “extraordinary psychological turmoil” for the parties’ Children.
Emergency Petition to Modify Custody Order, 12/3/19, at 1-4 (unpaginated).
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A hearing was scheduled for January 27, 2020, regarding both parties’
emergency motions.
At the January 27, 2020 hearing, Mother’s petition to modify the
Custody Order was granted and an order was entered, which maintained joint
legal custody of Children between the parties, but limited Father’s partial
physical custody to every Saturday from 10:00 a.m. to 6:00 p.m. The court
further directed that the McClain Children were not permitted to be present
during Father’s visits with Children. The presiding judge indicated that this
was meant as a temporary solution “for … a month or two … to let things calm
down,” and instructed Father to request a new hearing on his pending petition
for a custody hearing. See N.T. Hearing, 1/27/20, at 236. In February of
2020, Mother filed a petition for contempt, which alleged that Father had
violated the January 27, 2020 custody order by taking Children to see a movie
where the McClain Children were also present. As a result, Mother sought a
finding of contempt against Father and a further reduction in his partial
physical custody of Children.
The trial court scheduled a custody hearing for April 3, 2020, which was
then continued generally due to a judicial emergency declared in Bucks County
as a result of the COVID-19 pandemic. On April 15, 2020, Mother filed an
emergency petition for special relief and an amended petition for contempt.
An emergency custody conference was held via telephone on May 5, 2020,
during which the parties were notified that a notice of hearing would be mailed
when hearing dates became available. A custody hearing was held on August
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25, 2020, at which Mother presented witnesses and exhibits. The court was
forced to adjourn due to time constraints; thus, the hearing was continued on
October 14 and October 21, 2020.
After taking into consideration the testimony and evidence presented by
both parties, the trial court entered an order dated November 24, 2020,
awarding the parties joint legal custody of Children, except that Mother was
granted sole legal custody of Children with respect to psychological or
psychiatric issues. See Trial Court Order (“Modified Custody Order”),
11/24/20, at 1 ¶ 1. Additionally, the Modified Custody Order awarded Mother
primary physical custody of Children, subject to Father’s partial physical
custody every Wednesday from 4:30 p.m. to 6:30 p.m., and every other
Saturday from 11:00 a.m. to 1:00 p.m. During the months of May through
October, when Children’s paternal grandmother is at her home in Bayville,
New Jersey, Father is permitted to take Children to his mother’s home on any
Saturday that he would normally have custody, in which case his custody is
expanded from 9:00 a.m. to 8:00 p.m. Id. at 1-2 ¶¶ 2-3. Father is not
permitted any scheduled vacation time with Children. Id. at 3 ¶ 5. Mother is
permitted to take vacations during her custody time and, in addition, may
take a vacation with Children that causes Father to miss up to two of his
Wednesday dinner visits per year. Id. Mother shall have custody of Children
during all holidays, except from 11:00 a.m. to 2:00 p.m. on Father’s Day, and
from 11:00 a.m. to 1:00 p.m. on Christmas Day. Id. at 3 ¶ 6. The Modified
Order further states: “At no time shall … Children be in the presence of the
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three older McClain [C]hildren…. Father may have P.S. present on any of his
partial custody times.” Id. at 4 ¶9.
On December 23, 2020, Father filed a timely, pro se notice of appeal,
followed by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of
errors on appeal.2
As a prefatory matter, although this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally
confers no special benefit upon an appellant. Accordingly, a pro
se litigant must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court. This Court may quash or dismiss
an appeal if an appellant fails to conform with the requirements
set forth in the Pennsylvania Rules of Appellate Procedure. [See]
Pa.R.A.P. 2101.
Commonwealth v. Freeland, 106 A.3d 768-77 (Pa. Super. 2014) (case
citations omitted).
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2 We note with disapproval that Father’s 13-page Rule 1925(b) statement is
anything but concise, in contravention of our Rules of Appellate Procedure.
See Pa.R.A.P. 1925(b)(4)(ii), (iv) (providing that the statement “shall
concisely identify each error that the appellant intends to challenge” and
“should not be redundant or provide lengthy explanations as to any error”);
Karn v. Quick & Reilly Inc., 912 A.2d 329, 335 (Pa. Super. 2006) (stating
that the failure to comply with Rule 1925(b)(4) may result in waiver of all
issues, particularly where the trial court is impeded in its preparation of a legal
analysis of the issues) (citing Pa.R.A.P. 1925(b)(4)(vii)). Father’s lengthy
statement contains unnecessary procedural history, as well as the
development of argument and presentation of evidence pertaining to each of
the issues Father intended to raise on appeal. Nevertheless, we decline to
waive the issues actually raised on these grounds, as we do not believe the
trial court’s ability to identify and address the issues raised was impeded to
an extent that warrants such a drastic result. See McGavitt v. Guttman
Realty Co., 909 A.2d 1, 4 (Pa. Super. 2006) (declining to waive the
appellant’s issues on appeal where, despite a lengthy Rule 1925(b) statement
containing superfluous discussion, the trial court was not precluded from
conducting a comprehensive analysis of the issues raised).
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Instantly, Father failed to include a statement of questions involved in
his brief, as required by Pa.R.A.P. 2116(a).3 Rule 2116(a) “is to be considered
in the highest degree mandatory, admitting of no exception; ordinarily no
point will be considered which is not set forth in the statement of questions
involved or suggested thereby.” Wirth v. Commonwealth, 95 A.3d 822,
858 (Pa. 2014) (quoting Commonwealth v. Miller, 424 A.2d 531, 533 (Pa.
Super. 1981)). Therefore, it would be within the province of this Court to
dismiss the claims raised in the argument section of Father’s brief. However,
in the interest of justice, we will address the arguments that we can
reasonably discern from the itemized points in the argument section of the
brief. See Freeland, 106 A.3d at 777 (addressing the arguments that can be
reasonably discerned from the appellant’s brief “in the interest of justice,”
despite substantial defects in the brief).4
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3 Rule 2116(a) provides:
The statement of the questions involved must state concisely the
issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail. The statement will be
deemed to include every subsidiary question fairly comprised
therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.
Pa.R.A.P. 2116(a).
4 We further note that Father’s brief fails to substantially comply with our Rules
of Appellate Procedure, in that the brief does not include (1) a statement of
jurisdiction; (2) a copy of the order in question; (3) statements of the scope
and standard of review; (4) a copy of the Rule 1925(b) statement; and (5) a
copy of the lower court opinion. See Pa.R.A.P. 2111(a)(1)-(3), (10), (11);
(Footnote Continued Next Page)
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In his brief, Father essentially claims that the trial court erred in
awarding Mother sole legal custody of Children regarding psychological and
psychiatric issues, further reducing his partial physical custody of Children,
and directing that Children shall at no time be in the presence of the McClain
Children. Father’s Brief at 5-7. In reviewing a custody order, our scope is of
the broadest type, and our standard is abuse of discretion.
[T]he appellate court is not bound by the deductions or inferences
made by the trial court from its findings of fact, nor must the
reviewing court accept a finding that has no competent evidence
to support it…. However, this broad scope of review does not vest
in the reviewing court the duty or the privilege of making its own
independent determination…. Thus, an appellate court is
empowered to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may not
interfere with those conclusions unless they are unreasonable in
view of the trial court’s factual findings[] and[,] thus, represent a
gross abuse of discretion.
Moreover, on issues of credibility and weight of the evidence, we
defer to the findings of the trial court who has had the opportunity
to observe the proceedings and demeanor of the witnesses.
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Pa.R.A.P. 2114, 2115. Father’s brief also fails to comply with Rule 124(a)(4),
which provides that the lettering shall be “no smaller than 14 point in text and
12 point in footnotes.” Pa.R.A.P. 124(a)(4). See also Pa.R.A.P. 2135(c)
(“Size and other physical characteristics of briefs shall comply with Pa.R.A.P.
124.”). This Court is empowered to quash or dismiss an appeal where the
defects in the appellate brief are substantial. See Pa.R.A.P. 2101. Despite
Father’s blatant disregard for our Rules of Appellant procedures, these
infractions do not affect our ability to conduct a meaningful appellate review;
thus, we decline to dismiss this appeal. See Commonwealth v. Henry, 706
A.2d 313, 318 n.4 (Pa. 1997) (admonishing counsel for filing a brief in
contravention of various rules of appellate procedure, but determining that
appellate review was not impeded); Long v. Ostroff, 854 A.2d 524, 527 (Pa.
Super. 2004) (declining to quash the appeal where numerous defects in the
appellant’s brief did not prevent meaningful review).
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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. The test is whether the evidence of
record supports the trial court’s conclusions.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (internal citations omitted).
When making a decision that involves custody, the trial court must
consider the following sixteen custody factors set forth in Section 5328 of the
Child Custody Act (23 Pa.C.S. §§ 5321-5340):
(a) Factors.—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.
(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.
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(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.
(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). See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super.
2013). The trial court “shall delineate the reasons for its decision on the
record in open court or in a written opinion or order.” 23 Pa.C.S. § 5323(d).
“In expressing the reasons for its decision, there is no required amount of
detail for the trial court’s explanation; all that is required is that the
enumerated factors are considered and that the custody decision is based on
those considerations.” A.V., 87 A.3d at 823 (internal citation omitted). “A
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court’s explanation of reasons for its decision, which adequately addresses the
relevant factors, complies with Section 5323(d).” Id.Here, the trial court issued an opinion in support of its Modified Custody
Order, which included a thorough, eleven-page analysis of the foregoing
custody factors. See Trial Court Opinion (“TCO”), 11/24/20, at 2-12. Of the
sixteen factors, the trial court determined that nine of the factors favored
Mother, i.e., (a)(1)-(5), (7), (9), (10), and (12), and that six of the factors
were either neutral or not applicable, i.e., (a)(8), (11), (13)-(16). Only one
factor was found to favor Father, i.e., (a)(6), in that Children’s half-sibling,
P.S., lives with Father. Id. Based on our review, the evidence of record
supports the trial court’s decision to grant Mother primary physical custody
and sole legal custody of Children with respect to psychological or psychiatric
issues.
Father argues, however, that the “separation of siblings” resulting from
the Modified Custody Order is unwarranted and is not in the best interests of
Children. Father’s Brief at 5-6. He claims that Children did not get hurt during
sleepovers at his house, that the majority of Children’s injuries presented at
the hearing were not caused by the McClain Children, that J.L. “has never
roughhoused” with Children, and that the judge unfairly considered the
McClain Children’s ages and weights in her decision. Id. Moreover, Father
claims that the trial court “completely discredited the … CCES evaluation[,]”
which recommended that physical custody remain similar to that provided for
in the original Custody Order. Id. at 5. He further asserts that H.S.’s anxiety
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is not caused by seeing him. Rather, he states that Children “are happy to
see [him] and spend time with [him].” Id. at 6. Father insists that he has
been “in regular communication with [H.S.’s] therapist and [J.S.’s]
developmental doctors.” Id. Finally, he claims that Children have a strong
bond with P.S. and a loving relationship with their stepmother, Ms. McClain.
He requests this Court overrule any limitation placed on Children’s spending
time with their step-brothers, their step-mother, and their younger sibling,
P.S. Id. at 6-7.
Father is essentially asking us to reject the trial court’s findings and
credibility determinations, which we cannot do. Rather,
[w]e 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.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011). Based on our review
of the record, we discern that, while taking into account Children’s best
interests, the trial court carefully considered all of the statutorily mandated
factors in arriving at its custody determination, that its findings are supported
by the record, and that it adequately explained the basis for its decision. See
23 Pa.C.S. § 5323(d); A.V., 87 A.3d at 823.
Contrary to Father’s assertions, it is clear that the trial court took into
consideration the CCES Report dated August 27, 2019, and that it
acknowledged the report’s recommendation that the parties continue to have
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a custody schedule similar to the original Custody Order. See TCO at 3 (noting
that the CCES Report included Mother’s concerns regarding Father’s parenting
ability, particularly regarding the issue of Children’s safety). Of particular
interest to the court, in light of more recent events, was the following:
Mother told the custody evaluator in 2019[] that “Father has [a]
difficult time relating to … Children. She said that he appears as
being without emotion and not being empathetic…[.] Father does
not acknowledge that [H.S.] had problems with anxiety and that
[J.S.], who is in speech therapy, has a developmental issue.
Mother feels that Father’s judgment is not good…[.] When Father
got mad at Mother at [H.S.’s] skating recital, he was going to
remove [H.S.] from participating in the skating recital while the
skating recital was already in progress.”
At the hearing we held on January 27, 2020, and later hearings in
2020, we found that Mother’s description of Father’s faults, such
as not good parenting skills, lack of empathy, lack … of
acknowledgment of … Children’s issues, and misdirection of his
anger at Mother, were accurate descriptions of problems with
Father’s behavior. In addition, in the courtroom, he sat very still
and, principally, just stared at the bench. It was more of a blank
stare than a hostile stare. Father told the evaluator that he
wanted 50-50 custody, he thinks “he is an excellent father…,” and
he puts … Children’s needs first. At the hearing on January 27,
2020, and all subsequent hearings, we did not find that he was an
excellent Father who put his Children first.
Id. at 3-4 (citations to records and brackets omitted).
Additionally, the court emphasized that prior to the McClain Children’s
moving into Father’s home, the parties adhered to the Custody Order without
much trouble. However, after the McClain family moved into Father’s
residence, the court noted numerous incidents which demonstrated Father’s
poor parenting skills:
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1. Father agreed that Mother could take … Children to a dance
recital in December [of] 2019…. Children had costumes, were
looking forward to the recital, and had been rehearsing since
September. Mother went to pick up … Children at Father’s
[home.] (It was his weekend[.)] [] Children were not there[,]
and Father did not answer his cellphone. [] Children missed
the recital[,] and it was only several hours later that the
paternal grandmother contacted Mother and said … Children
were fine. Apparently, they had gone to see Santa Claus with
[Ms.] McClain and [the McClain C]hildren. When Father
testified on October 21, 2020, he indicated that he was upset
at Mother because she had not given him make-up dates with
… Children from when [he] was sick. He said Mother was
checking her schedule. Nothing in the [Custody] Order
required make-up time. This is an example … of Father[’s]
being annoyed at Mother and taking it out on Children. It was
outrageous that he would not even answer Mother’s call and
say … Children were not going to the recital. Mother testified
that … Children were very upset.
2. Ryan Resnick, the manager of a pet store, testified on August
25, 2020, to the behavior of Father and … Children in the store.
Basically, … Children ran around the aisles uncontrolled for
about 45 minutes while Father tried to contain them. Mr.
Resnick said he never saw children so out of control. Mother
said that Father has never known how to handle … Children.
This incident occurred after January 27, 2020, when we
reduced Father’s time. Clearly, he did not know what to do
with his Children when the McClain [C]hildren were at his house
and he could not take [them there]. This is one of the reasons
we are reducing his time.
3. Clothing—Mother had complained that Father did not return the
clothes she sent with … Children and that he sometimes sent
other clothing. Father then began the practice of taking the
clothes he was returning, spreading them out in front of
Mother’s house, taking a picture of them, and then putting
them in a bag at Mother’s door. Mother said … [C]hildren were
upset by this procedure. In our [Modified] Order, we have
stopped this practice.
4. Father took … [C]hildren to the movies … at some point after
we entered our January 27, 2020[] Order prohibiting contact
between the Stone Children and the McClain [C]hildren. The
McClain [C]hildren were in the same theater with their paternal
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grandfather, very close to the Stone Children. Father did not
ask the McClains to move, nor did he move his Children. There
was apparently no overt incident, but we believe Father was
deliberately pushing the line or was over the line with respect
to the directive in our January 27, 2020[] Order[, which] states
that the McClain [C]hildren are not to be in the presence of the
Stone Children.
5. Close before the time of the January 27, 2020[] hearing, [H.S.]
had a complete meltdown at the end of a Friday school day.
Michelle Scharf, the guidance counselor at Afton Elementary
School, testified that she found [H.S.] in the hall, curled up in
a fetal position. [H.S.] told her she did not feel safe at Father’s,
that she was going to be in a “time-out” all day, and that she
had previously been kept in her room all day in a “time-out”
except [for] going to the bathroom. She said that she was
being punished for “pee and poop” accidents. Father dismissed
her reaction to his sanction. Later, it developed in testimony
that all [three] … Children were punished. We do not see how
punishing Children will deal with the problem for such
accidents. Father testified he thought their behavior was
deliberate. We do not.
Id. at 4-6 (citations to record omitted).
The trial court further noted that when Children were interviewed by the
custody evaluator prior to the McClain Children’s spending overnights at
Father’s house, they were “very positive” about going to see Father. Id. at 7.
Since the McClain Children started spending time at Father’s home, however,
the court made the following findings:
1. Valerie Allen, [Children’s] nanny, testified that [H.S.] cries, is
very anxious, and refuses to get into the car to go to Father’s.
She cries and sobs hysterically. [] Children say that “they are
scared.” They do not want to be in time-outs for hours and do not
want to be “abused” by the McClain [C]hildren.
2. [J.S.] said that [T.L.] scratched him.
3. [J.S.] also said the McClain [C]hildren poured “pee” on the
heads of the Stone Children. Father and [Ms. McClain] said it was
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water and dismissed it as a prank, but Mother said … Children
were upset.
4. Another incident at Father’s house involved a knife (apparently
a butter knife). A McClain child waived it around. Father and [Ms.
McClain] again dismissed this as a mere prank[,] even though the
Stone Children were scared.
5. On another occasion[,] Ms. Allen asked [J.S.] what happened
to his lip. Father told Ms. Allen that [J.S.’s] lips were chapped,
then Father said [J.S.] and [J.L.] were wrestling on the floor, and
then Father said [J.S.] slipped and fell into the coffee table. When
[J.S.] took off his hat, Ms. Allen saw “[J.S.’s] head was swollen
and he had red bruises all over his head.” [J.S.] explained that
[T.L.] kicked him in the head seven times. [J.S.] was wearing a
hat that covered the marks. Ms. Allen said [J.S.] does not usually
wear a hat. This appeared to be the most serious injury.
6. In September, [H.S.] said she was stabbed by a pencil, but
there was no mark. In October, [H.S.] was crying hysterically,
holding her side, when she said she was pushed down the stairs
by [J.L.] She later said she tripped. On October 24th or 25th [of]
2019, [H.S.’s] abdomen was mildly swollen.
Id. at 7-8 (citations to the record omitted).
Notably, the trial court stated that Father dismissed all the foregoing
incidents “where the Stone Children received marks … as either being inflicted
by one Stone child to another or [as] trivial.” Id. at 8. The court added:
The incidents that have occurred in Father’s home are not actually
abuse[. T]hey are more negligence and lack of supervision. The
behavior of Father (and [Ms. McClain]) has resulted in injuries,
principally to [J.S.] Father blames his Children for causing the
injuries to each other and Mother blames the McClain [C]hildren.
Mother is correct. Moreover, [H.S.] wrote a note which said
“daddy lied[.]” We agree.
[Ms. McClain] and her children started spending overnights with
Father in July, 2019, and completely moved in with Father in
January, 2020. It is very clear that the Stone Children did not
have any injuries prior to their contact with the McClain [C]hildren.
Moreover, they do not receive injuries at Mother’s house. If the
Stone Children were causing the injuries to each other, why do
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they only receive injuries at Father’s house? The Stone [C]hildren
appear to be considerable [sic] smaller than the McClain
[C]hildren. Father testified that [J.L.] was 5’4” and weighed 140
lbs.[,] whereas [J.S.] was 4’5” and weighed 80 lbs. With this
disparity in height and weight these boys should not even be
roughhousing.
Id. at 8-9 (citations to record omitted).
Finally, the trial court opined:
This is an unusual custody matter since Father refuses to
acknowledge there is any issue with [the McClain Children] and
[believes] that, in fact, any problems are the fault of his own
Children. We did not find that to be the case. Father and [Ms.
McClain] were also adamant that the 3 older McClain [C]hildren
had no place to go except to Father’s and did not seem to
understand that Father would then have very limited time with his
own Children. Given these constraints, we have tried to devise an
[o]rder that, at least in the summer, will give Father what time
we can. We have not included [Ms.] McClain in Father’s [p]atrial
[c]ustody time. She testified she had to watch her 3 older
children. We have to keep in mind the negative impact of the
actions of the McClain [C]hildren with the Stone Children.
Id. at 12. Having already determined that the trial court’s findings are
supported by the record, we deem its custody determination to be reasonable
in light of these findings. We discern no abuse of discretion or error of law.
Thus, Father is not entitled to any relief on his claims.
Accordingly, we affirm the trial court’s November 24, 2020 Modified
Custody Order and the custody schedule delineated therein.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2021
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