J.P.D. v. D.J.S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.P.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
D.J.S. :
:
Appellant : No. 2934 EDA 2019
Appeal from the Order Entered September 16, 2019
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C-48-CV-2014-762
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 03, 2020
Appellant, D.J.S. (Father), appeals pro se from the order entered in the
Northampton County Court of Common Pleas, which: found him in contempt
of the parties’ custody order; modified his physical custody of L.S. (Child);
and ordered payment of J.P.D. (Mother)’s counsel fees.1 We conclude Father
has waived all his issues for a defective brief and thus affirm.
Father and Mother are parents to Child, born in June 2013. They
married shortly after Child’s birth, but separated approximately six months
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1 “Generally, an order finding a party in contempt is interlocutory and not
appealable unless it imposes sanctions.” Rhoades v. Pryce, 874 A.2d 148,
151 (Pa. Super. 2005) (en banc). However, “the imposition of counsel fees
can constitute a sanction.” Id. at 152. Thus, we determine the trial court’s
order was appealable and this this appeal is properly before us.
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later in December 2013. The within divorce and custody matter commenced
in January 2014, and a divorce decree was entered in June 2016. The trial
court explained:
The parties have filed numerous pleadings against each other[,
including:] various Protection From Abuse (PFA) actions filed
against each other and/or extended family members; and in
criminal and civil complaints brought against each other before
several different Magisterial District Judges.
Trial Ct. Op., 1/14/20, at 3.
The controlling custody order, entered May 26, 2015, generally granted
the parties shared legal custody, Mother primary physical custody, and Father
partial physical custody every other weekend. Custody exchanges were to be
conducted at police stations. On November 1, 2018, the court ordered both
parties to submit to psychological evaluations.
On August 20, 2018, January 16, and April 3, 2019, Mother filed
petitions for contempt, alleging, inter alia, Father’s willful failure to comply
with the custody schedule. For example, Mother alleged that in March of 2019,
Father refused to return Child because of “inclement weather” although there
was no snow; when Mother arrived at Father’s home, he was not there; Mother
called the police to perform a welfare check and they discovered Father did
not reside at that address; and the following day, Father sent Child to school
with a fever and pharyngitis, confirmed by a pediatrician visit. Trial Ct. Op.
at 24-25. On April 3, 2019, Mother also filed a petition for special relief,
seeking Father’s authorization for Child to see the school counselor and for
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Father’s consent to a passport for Child, so that Child could travel to Disney
World. Id. at 25.
The trial court conducted a hearing on Mother’s petitions on July 16,
2019. Father appeared pro se but did not present any evidence. Mother,
represented by counsel, called psychologist Ronald Esteve, Ph.D., who had
conducted the parties’ court-ordered evaluations, to testify as an expert
witness. The trial court credited Dr. Esteve’s opinion that Father presented
“with clear evidence of psychopathology,” which
is behavior that most reasonable, rational people would recognize
as far and away outside of the normal boundaries of functioning.
And it’s also behavior that causes damage or pain . . . to the
person himself, [Father], or it could cause damage or pain to other
people[, for example, Mother, Child,] or other people.
See N.T., 7/16/19, at 25; Trial Ct. Op. at 41.2 Dr. Esteve further opined that
Father’s contact with Child should be in “small doses,” meaning “limited
contact” that is “controlled” or “monitored.” Id. at 26.
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2 The trial court also credited Dr. Esteve’s report, which summarized Father
sees Mother as evil, cruel, and criminal, and he is determined to
punish her, even if he must hurt the Child in order to do so. . . .
“Even when asked purposefully biased questions which
encouraged [Father] to focus on the best needs of his daughter
and the goal of a health relationship between the parents . . . he
was having none of that. Rather his focus is solely on the criminal
punishment of [M]other.”
Trial Ct. Op. at 26. The court then explained it previously found Mother’s
numerous allegations of Father’s misconduct to be “a ‘he said – she said’
dispute with no firm evidence to establish the weight of Mother’s claims,” and
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The court also found, after reviewing Dr. Esteve’s report: “Based on the
various, conflicting representations by [Father], there is no clear picture as to
where Child stays and who provides childcare while Child is supposed to be in
[Father’s] custody.[ ]”3 Trial Ct. Op. at 31.
At the hearing,
Mother recited a litany of troubling interactions with [Father] over
the last several years. [For example, she testified Father
continued to videotape the custody exchanges, which the trial
court had forbade.4] Mother claims that Child is often distressed,
dirty, [and] hungry [after visits with Father.] Child provides
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furthermore that Father was merely “a bit weird, but motivated in good faith
to fulfill his parental duties.” Trial Ct. Op. at 40. However, the court found:
Dr. Esteve’s report is replete with [Father’s] written proclamations
— many manifesto in nature — in which [Father’s] very words
support Mother’s concerns. Upon careful consideration of Dr.
Esteve’s evaluation and opinion, we now understand that his
behavior is a function of an enduring and pervasive
psychopathology and further, based upon his musings given to Dr.
Esteve, his mental health condition is “far and away outside of
normal human variance and his behavior has and will continue to
cause damage and pain to others as well as himself.”
Id. at 41. The court acknowledged: “It can be argued that we erred in being
too accommodating or indulgent with regard to [Father’s] history of bad
behavior.” Id. at 40-41.
3 Nevertheless, the trial court stated Father often exercised his overnight
visitation at the home of his girlfriend or wife, C. See Trial Ct. Op. at 20
(referring to C. as Father’s girlfriend); N.T., 7/16/19, at 68 (trial court referred
to C. as Father’s wife, and Father did not object). Father and C. have a two
children together, and C. also has another child. Id. at 20-21. However,
Father generally did not live with C., and in any event, Father told Dr. Esteve
he and C. separated in “early 2019.” Id. at 27-28.
4 N.T., 7/16/19, at 39-40. See also Order, 11/1/18, at ¶ 3 (forbidding
videotaping custodial exchanges).
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information to Mother that she often stays with various
caretakers, including . . . Paternal Grandparents or [Father’s]
most recent girlfriend[.] Mother complained about [Father’s]
refusal to co-parent with [her], including his refusal to agree to
allow Child to participate in [a]rt [t]herapy and violin lessons.
Finally, Mother continued to complain about [Father’s] refusal to
communicate or provide important information to Mother,
including identifying where he will be staying with Child during his
visits.
Trial Ct. Op. at 36-37.
While Mother’s petitions remained pending, she filed another petition for
contempt on September 5, 2019. The court conducted a hearing on
September 13th. Mother appeared with counsel, but Father failed to appear.
N.T., 9/13/19, at 3. The trial court summarized the events underlying this
petition for contempt:
. . . Mother related that on August 27, 2019, [Father] appeared at
Child’s school and demanded that school officials produce the
Child. The school . . . called the police, who then informed
[Father] he was not permitted back on school grounds. [T]wo
days later, on August 29, 2019, [Father] failed to deliver Child to
her elementary school. As a result the Principal, who . . . allegedly
had a history of concerning incidents with [Father], contacted
Mother to report this concern. Mother testified that [Father] would
not answer her phone call, so she contacted the Lower Saucon
Township Police Department. Officer Bredenner reported to the
school and spoke with the Principal. Officer Bredenner was unable
to make contact with [Father] by phone. Eventually[,] he
obtained [Father’s] girlfriend’s email and sent a welfare check
notice to [her] inquiring about Child. [Father] delivered Child to
school after 11:00 a.m.
Trial Ct. Op. at 2.
By order entered September 16, 2019, the trial court found Father in
willful contempt of the May 22, 2015, custody order, and modified Father’s
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physical custody of Child, granting him one four-hour session of supervised
visitation every other weekend. The order also directed Father to pay Mother’s
counsel fees in the amount of $1,500 within 30 days.
Father filed a timely notice of appeal on October 10, 2019.5 He did not
contemporaneously file a concise statement of errors complained of on appeal,
as required by Pa.R.A.P. 1925(a)(2)(i). As a result, the trial court directed
Father to file a concise statement within 21 days. On November 21, 2019,
this Court likewise entered an order directing Father to file a concise statement
by December 2, 2019. Father filed a concise statement on December 2nd.6
The trial court issued a 48-page opinion on January 14, 2020, thoroughly
summarizing the procedural history of this case and setting forth its reasoning.
On appeal, Father raises the following issues for our review:
The order being appealed, dated 13 September 2019, is one page
in length and broken into three points of subject. All three items
are being appealed. The first item states that [Father] is found in
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5Father additionally filed a petition for modification and petition for contempt
on October 10 and 11, 2019, respectively. The trial court dismissed both after
Father failed to appear for a scheduled conference on these petitions. Order,
11/18/19. The court’s order further stated Father “made no effort to see [ ]
Child since entry of this court’s order of September 16, 2019. . . .” Id.
6 Because Father ultimately filed a Rule 1925(b) statement, within the
deadline set by this Court’s order, we decline to find he has waived his issues.
See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (failure to file Rule
1925(b) statement concurrently with children’s fast track appeal is considered
defective notice of appeal, to be disposed of on case-by-case basis, and will
not result in dismissal or quashal where there was no prejudice to other
parties). Cf. J.M.R. v. J.M., 1 A.3d 902, 907 (Pa. Super. 2010) (failure to file
Rule 1925(b) statement, when ordered by Superior Court, will result in waiver
of all issues on appeal).
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willful contempt without identifying the event the willful contempt
occurred or citing any reason or evidence considered. The second
item removes all unsupervised custodial rights of [Child] without
justification of why this is in the best interest of the minor child.
The third item requires [Father] to pay opposing counsel fees as
a consequence of the alleged willful contempt at a level [Father]
finds inappropriate. Further, the bias of the presiding Judge and
its affect [sic] on the outcome is under protest.
Father’s Brief at 1-2.
The argument section of Father’s brief, spanning two pages, consists of
three numbered paragraphs. Father’s Brief at 3-4. The first paragraph alleges
the trial judge’s behavior was “unprofessional, hostile, dismissive, and in
conflict with the standards of a member of the BAR.” Id. at 3. Father avers,
without any further explanation, the trial judge “made sweeping negative
conclusions regarding the question of custody in prior events[,] surprised the
Custody Master and invited himself off record into a mediation session in
August 2018[,] consistently dismissed available evidence and directly
influenced this specific docket for personal interests[.]” Id. In Father’s
second paragraph, he contends, again without further discussion, that Mother
committed perjury and presented evidence “with willful intent made to mislead
the court,” and that Mother’s counsel “failed to meet professional standards
and acted inappropriately.” Id. at 4. Father further asserts the trial court
“failed to identify any specific evidence being found [sic] credible or
relevant[.]” Id. Finally, Father’s third paragraph states, in sum: “The hearing
in July 2019 failed to identify its purpose, negating [Father’s] ability to prepare
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or present any evidence.” Id. Father’s brief does not cite any legal authority.
We conclude all of Father’s issues are waived.
Pennsylvania Rule of Appellate Procedure 2119(a) provides that the
argument section of a brief “shall have at the head of each part — in distinctive
type or in type distinctively displayed — the particular point treated therein,
followed by such discussion and citation of authorities as are deemed
pertinent.” Pa.R.A.P. 2119(a). An appellant waives an issue on appeal if they
fail to present it with citations to relevant authority or to develop the issue in
a meaningful fashion capable of review. Green Acres Rehab. & Nursing
Ctr. v. Sullivan, 113 A.3d 1261, 1267 n.4 (Pa. Super. 2015). The argument
section shall specify the place in the record where an issue was raised before
the trial court and therefore preserved for our review. Pa.R.A.P. 2119(e).
Additionally, “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a).
Here, Father’s brief fails to identify any particular point of error or cite
any legal principle. Instead, he refers ambiguously to the behavior of the trial
judge and Mother’s counsel, without citing any specific conduct nor explaining
what professional rules they allegedly violated. Furthermore, in alleging
Mother committed perjury and presented improper evidence, Father does not
point to any particular testimony or evidence or explain why the court should
not have admitted it. In addition, our review of the July 16, 2019, transcript
reveals Father raised no objection to any of Mother’s evidence, thus waiving
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any evidentiary challenge for our review. See Pa.R.A.P. 302(a). We likewise
conclude Father failed to raise any argument before the trial court that he was
unaware of the issues to be litigated, or that he was unfairly precluded from
presenting his own evidence. See id.We note the trial court’s discussion of Father’s Rule 1925(b) statement:
. . . Nowhere in his Statement did [Father] address the allegations
that he failed to deliver the Child to school on September 5, 2019,
as required by the Custody Order or that his failure to return Child
to Mother has been a continuing, repeated issue over our many
years of involvement with this case. However, [Father’s]
Statement does address his litany of historic complaints against
Mother, the psychologist who performed court-ordered
evaluations of the parties, and his various interactions with the
Court during this custody dispute.
Trial Ct. Op. at 2. While the trial court was addressing Father’s Rule 1925(b)
statement, the court’s observations are relevant to Father’s brief as well. On
appeal, Father has wholly failed to acknowledge Mother’s allegations of his
numerous violations of the court’s orders and refusal to cooperate with her.
Similarly, while averring the trial court “failed to identify any specific evidence
being found credible or relevant,” Father ignores the court’s extensive review
of Dr. Esteve’s written report and testimony. See Father’s Brief at 4; Trial Ct.
Op. at 26-36.
Because Father has failed to develop any claim, discuss relevant
authority, or show his claims are preserved for our review, we are constrained
to conclude his issues are waived. Accordingly, we affirm the order of the trial
court.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2020
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