R.L.W. v. E.S.H. ( 2019 )

J-A18045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.L.W., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
E.S.H. : No. 412 WDA 2019
Appeal from the Order Dated February 22, 2019
in the Court of Common Pleas of Allegheny County
Civil Division at No(s): FD-11-006416
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2019
R.L.W. (“Mother”), pro se, appeals from the Order dated February 20,
2019, and filed February 22, 2019,1 in the Allegheny County Court of Common
Pleas, denying Mother’s Motion for Change in Counseling regarding her child
with E.S.H. (“Father”), J.L.H.-W., born in August 2010 (“Child”). After review,
we affirm the trial court’s Order.
____________________________________________
1 While the docket reflects a filed date of February 22, 2019, there is no
notation on the docket that notice was given, and that the Order was entered
for purposes of Pa.R.C.P. 236(b). See Frazier v. City of Philadelphia, 735
A.2d 113, 115 (Pa. 1999) (holding that “an order is not appealable until it is
entered on the docket with the required notation that appropriate notice has
been given”); see also Pa.R.A.P. 108(a) (providing that the entry of an order
is designated as “the day on which the clerk makes the notation in the docket
that notice of entry of the order has been given as required by Pa.R.C.P.
236(b)”). Thus, the Order was not entered and the appeal period was not
triggered. Although we consider the matter on the merits, we caution the
Court of Common Pleas of Allegheny County with regard to compliance with
the rules related to the entry of orders.
J-A18045-19
The trial court summarized the procedural and factual history as follows:
Mother and [Father] are the parents of [Child], who is the
subject of these proceedings. Pursuant to an April 27, 2015 Order
of Court, the parties share legal custody; physical custody is
rotated on a weekly basis with exchanges taking place on
Thursdays. As the docket reflects, this case has a lengthy and
acrimonious history. The parties are extremely litigious and have
regularly appeared in this [c]ourt on both serious and petty
matters. The parties have been ordered to participate in both
individual and co-parent counseling, but the animosity between
them remains relatively strong.
The case history relevant to the within appeal commenced
on August 28, 2018, when Father presented a Petition for Special
Relief to this [c]ourt. Therein, Father sought, inter alia, an order
granting him permission to enroll [] Child in counseling. Father
contended that he had periodically, and unsuccessfully, requested
Mother’s consent for the same since January of 2017. He sought
an order requiring the parties to enroll [] Child in counseling with
a jointly selected counselor.
In Mother’s Response to Father’s [M]otion, she sought,
among other things, to defer Father’s counseling request to
conciliation.
Consistent with Mother’s request, this [c]ourt ordered that
conciliation on the parties’ issues should occur, and the [c]ourt
subsequently conducted said conciliation on September 20, 2018.
While Mother expressed opposition to counseling, she ultimately
agreed to an evaluation[,] with Father selecting the counselor if
he paid 100% of the counselor’s unreimbursed costs. Mother’s
sole caveat was that Father not select a counselor from two
specific entities, the names of which she provided. It was further
agreed that if the counselor recommended a course of counseling,
the parties would split the unreimbursed cost in proportion to their
incomes.
The aforesaid agreement was deliberately omitted from the
September 20, 2018 Court Order, at the request of counsel for
Mother. Mother’s counsel opined that inclusion of the agreement
in the court order could have negative insurance coverage
ramifications. Father’s counsel agreed to omit the same. This
[c]ourt informed the parties that their agreement was reflected in
-2-
J-A18045-19
the [c]ourt’s notes and that if necessary, either party could seek
a [c]ourt [o]rder to enforce the same.
Subsequently, on October 5, 2018, Father presented an
Emergency Petition for Special Relief, wherein he averred that he
had scheduled a counseling session for [] Child, given Mother
notice of the same, and that Mother had cancelled the session.
Father was unable to proceed with the counseling because the
provider refused to see [] Child without Mother’s consent or a
[c]ourt [o]rder authorizing the same.
Mother did not deny Father’s allegations; rather, she
informed the [c]ourt that she had simply changed her mind since
the conciliation. She still maintained that [] Child did not need
counseling, but contended that she now wished to participate in
the counselor selection process. Mother proposed that the parties
obtain a consultation from one of three entities selected by her or
proceed to a hearing on the issue.
[The trial court] granted Father’s [E]mergency [P]etition,
allowing him to select a counselor for [] Child without Mother’s
consent or interference. The Order also provided that Mother
would be responsible for any counseling costs which would have
been covered by insurance but for the existence of the Court
Order.
On October 11, 2018, Mother filed a timely Notice of Appeal
from the October 5, 2018 Order of Court, which … the Superior
Court docketed at 1465 WDA 2018 (the “2018 Appeal”). [The trial
court] prepared and filed a Pa.R.A.P. 1925(a) [O]pinion
addressing Mother’s allegations of error. In the meantime, Mother
and Father’s counsel were present in motion’s court on a support[-
]related issue. The issue of [] Child’s counseling was referenced;
Mother represented that the counselor would not communicate
with her, that Father was denying her access to the counselor, and
that she believed the October 5, 2018[,] Court Order mandated
the same. The [c]ourt assured Mother that the October 5, 2018
Court Order did not suspend her legal custody or deny her access
to the counselor.
Mother subsequently discontinued the 2018 Appeal in
December 2018. She then presented a Petition for Conciliation to
this [c]ourt on January 24, 2019, wherein she requested the
[c]ourt to clarify that she retained shared legal custody and was
-3-
J-A18045-19
entitled to equal access to [] Child’s professional service providers,
including [Child’s counselor], the individual selected by Father as
[] Child’s counselor pursuant to the [c]ourt’s October 5, 2018
Order. This [c]ourt granted Mother’s [P]etition and added a
provision directing that all communications of [Child’s counselor]
be made to both parties.
Nearly one month after the [c]ourt’s entry of the January
24, 2019 Order, Mother presented—on February 20, 2019—a
Motion for Change in Counseling (“the Motion”). Therein, she
alleged that she had been unable to speak with or otherwise
communicate with [Child’s counselor], whom she asserted would
not return her calls or respond to her emails; that Father was
essaying to alienate [] Child from her and to interfere with her
attempts to contact [Child’s counselor]; that [Child’s counselor]
has a criminal record and lacks a license to practice as a therapist;
and that she was extremely uncomfortable with [Child’s
counselor] being [] Child’s counselor. Mother requested the
[c]ourt to permit her to choose a new family counselor, for
counseling in which [] Child and the parties would participate.
Mother did not request a hearing.
After receiving the Motion [and] Father’s response thereto,
and [after] hearing the parties’ oral arguments on the same,[2] …
the [c]ourt granted a modified version of Father’s proposed order
(the “Order”). The Order[] (i) required Child to continue
counseling with [Child’s counselor]; (ii) permitted Mother to make
an appointment with [Child’s counselor] to discuss [] Child’s
treatment and Mother’s areas of concern; (iii) prohibited Mother
from further contacting [Child’s counselor] or his office following
the aforementioned appointment without [Child’s counselor]’s
consent or the existence of an emergency; and (iv) required
[Child’s counselor] to communicate information regarding Child
and/or her counseling, if he deems such communication to be
appropriate, to both Father and Mother in writing. In addition, the
Order permitted the parties, who were scheduled for a []
mediation the following day, to proceed immediately to a judicial
conciliation in the event they were unable to resolve their custody-
____________________________________________
2 It is believed that the reference to oral argument is an error, as the trial
court and the parties appear to agree that no argument took place.
-4-
J-A18045-19
related issues, thereby allowing them to skip the Generations
conciliation usually required in Allegheny County.[3]
On March 15, 2019, Mother filed a Notice of Appeal from the
Order to the Superior Court, which docketed the appeal at 412
WDA 2019. Mother’s Notice of Appeal did not contain language
designating the appeal as a children’s fast track appeal. [See]
Pa.R.A.P. 904(f). The Notice of Appeal also did not contain and
was not accompanied by the concise statement of errors
complained of on appeal (the “Concise Statement”) required for a
children’s fast track appeal. [See] Pa.R.A.P. 905(a)(2); [see
also] Pa.R.A.P. 1925(a)(2).
Mother did, however, file a Concise Statement on March 29,
2019, which the Court received on April 1, 2019.[4]
Trial Court Opinion, 4/17/19, at 1-6 (italics in original) (footnotes added).
On appeal, Mother raises the following issues for our review:
1. Are [Mother’s] [s]hared [l]egal [c]ustody rights [v]iolated by
this [O]rder?
[2.] Does this [O]rder violate due process without a fair hearing?
[3.] Was there a hearing on this matter?
____________________________________________
3 The court’s Order was filed on February 22, 2019.
4 Although Mother violated Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise
statement of errors complained of on appeal concurrently with her Notice of
Appeal, Mother filed a Concise Statement less than one month later. As there
is no assertion of any prejudice, we do not quash or dismiss her appeal. See
In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (holding that the failure
to file a Rule 1925(b) statement concurrently with a children’s fast track
appeal is considered a defective notice of appeal, to be disposed of on a case-
by-case basis, and declining to quash or dismiss the appeal where there is no
prejudice to the other parties as a result of the late filing).
-5-
J-A18045-19
[4.] Is this a violation of a patient’s [b]ill of rights according the
[P]rivacy [A]ct also known as HIPAA?[5]
Mother’s Brief at 3-4 (citations and suggested answers omitted).6
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. 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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015).
As this Court has explained,
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
____________________________________________
5“HIPAA” refers to the Health Insurance Portability and Accountability Act of
1996.
6 We observe that Mother states her issues somewhat differently in her
Concise Statement. To the extent that Mother raises any issues not raised in
her statement of questions involved, we find that such issues are waived. See
Krebs v. United Refining Co., 893 A.2d 776, 797 (Pa. Super. 2006) (stating
that a failure to preserve issues by raising them both in the concise statement
of errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues); see also fn. 8,
infra.
-6-
J-A18045-19
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations
omitted).
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section
5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
-7-
J-A18045-19
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a).
Section 5328(a) sets forth the 16 best-interest factors that the trial
court must consider in making such an award. See E.D. v. M.P., 33 A.3d 73,
79-80 n.2 (Pa. Super. 2011). With regard to the Custody Act, we have stated
that “[a]ll of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.” J.R.M. v. J.E.A.,
33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted). The record must be
clear on appeal that the trial court considered all the factors. Id.
We have clarified that the factors under Section 5328(a) are required to
be addressed where an order impacts an award of custody and does not
merely deal with a discrete and distinct issue. S.W.D. v. S.A.R., 96 A.3d 396
(Pa. Super. 2014).
It is also true that resolution of an otherwise ancillary matter may
affect a form of custody and require consideration of the [Section]
5328(a) factors. For instance, the choice of a child’s school may
factor into a trial court’s decision to award a form of custody when
the trial court is addressing a request to establish or change legal
or physical custody in connection with the choice of school. One
parent in a custody dispute may argue that he or she is entitled
to primary physical custody because his or her residence has much
better schools. On the other hand, many times—like here—these
items may appear as independent, discrete issues[,] advanced by
motion or petition[,] that do[] not require a change in the form of
custody. Although any decision requires consideration of the
child’s best interest, only the former situation requires
consideration and application of the § 5328(a) factors.
-8-
J-A18045-19
Id. at 403; see also M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super. 2014)
(stating that, “[b]ecause the trial court did not make an award of custody, but
merely modified a discrete custody-related issue, it was not bound to address
the sixteen statutory factors in determining the [c]hildren’s best interest.”).
Mother essentially argues that she was denied due process, maintaining
that there was no hearing before the “limiting” of her shared legal custody.
Mother’s Brief at 7-9. Mother further contends that the court was biased
against her, “punish[ing]” her for “executing her shared legal custody
rights.”7, 8 Id. at 9.
As to Mother’s assertion of lack of due process for failure to have a
hearing, the trial court observed that
Mother never requested a hearing on the Motion[,] and has never
objected to the [c]ourt not holding a hearing[,] until the filing of
the Concise Statement. Absent such a request and objection,
____________________________________________
7 In his brief, Father argues that Mother has waived all issues on appeal due
to the presentation of a procedurally deficient brief. Father’s Brief at 12.
Although deficient, we decline to find waiver and proceed with the merits of
Mother’s appeal, as we are able discern the issues raised and her argument.
See Pa.R.A.P. 2101 (stating that the “[b]riefs and reproduced records shall
conform in all material respects with the requirements of these rules as nearly
as the circumstances of the particular case will admit, otherwise they may be
suppressed….”); see also In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super.
2011) (stating that, “where an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the issue in
any other meaningful fashion capable of review, that claim is waived.”)
(citation omitted).
8 To the extent that Mother argues bias in the Argument section of her brief,
we find that Mother failed to preserve this challenge[,] as she did not raise it
in her Statement of Questions Involved in her brief. See Krebs, 893 A.2d at
797 (holding that the Superior Court will not consider any issue if it has not
been set forth in or suggested by the statement of questions involved).
-9-
J-A18045-19
Mother has not … properly preserved a claim associated with the
lack of a hearing on the Motion. [See] Pa.R.A.P. 302(a) (“[i]ssues
not raised in the lower court are waived and cannot be raised for
the first time on appeal”); [see also Beemac Trucking, LLC v.
CNG Concepts, LLC], 134 A.3d 1055, 1058 ([Pa. Super.] 2016)
(“[a]n issue raised for the first time in a concise statement is
waived”).
Trial Court Opinion, 4/17/19, at 8; see also Pa.R.A.P. 302(a) (providing that
“[i]ssues not raised in the lower court are waived and cannot be raised for the
first time on appeal”); Fillmore v. Hill, 665 A.2d 514, 515-16 (Pa. Super.
1995) (stating that, the failure to timely object to a basic and fundamental
error will result in the waiver of that issue).
Further, as to any violation of Mother’s shared legal custody rights, the
trial court reasoned that
[t]he Order does not prohibit Mother from contacting [Child’s
counselor]. Instead—and as noted above—the Order permits
Mother to meet with [Child’s counselor] and then to have
continued communication with him to the extent he deems
appropriate; Mother, however, has simply refused to attempt to
schedule such a meeting.
The [c]ourt did limit Mother’s ability to communicate with
[Child’s counselor]. Mother had repeatedly advised the [c]ourt
that [Child’s counselor] did not return her numerous phone calls.
Mother continued to make these calls even though she knew
[Child’s counselor] could not conduct single party
communications. A review of the exhibits to Mother’s Motion
caused the [c]ourt further concern. Mother had written [Child’s
counselor] to request that he initiate family therapy for the parties
and Child. She also requested that he bill her directly for her
proportionate share of the unreimbursed counseling fees. She
wrote again, four days later, requesting a response “ASAP[.”]
Mother had forwarded a copy of [Child’s counselor]’s report, [sic]
to a Ms. Parnell, who is employed in [Child’s counselor]’s office
and with whom Mother had obviously previously communicated.
In her communications with Ms. Parnell, Mother made inquiry
- 10 -
J-A18045-19
regarding the nature of [Child’s counselor]’s licensure and his
failure to respond to Mother’s communications. The [c]ourt was
concerned that if these communications continued unabated,
[Child’s counselor] would terminate his services to [] Child.
The [c]ourt was also concerned, however, that Mother’s
queries remained unanswered. Mother was entitled to have her
inquiries answered and concerns addressed. Thus, the [c]ourt
ordered that Mother could schedule an appointment with [Child’s
counselor] to address the same. As stated, Mother has failed to
do so.
Finally, despite her contentions to the contrary, the Order
does not deprive Mother of her legal custody rights. The Order
only speaks to [Child’s counselor] and [] Child’s counseling; it
does not address “full medical” or provide the same to Father.
Finally, Mother’s arguments regarding the “Pa Shared legal rights
statute[,]” “the HIPAA privacy act[,]” the “Patients’ Bill of
rights[,]” and the lack of a hearing are waived. She never raised
those contentions or requested a hearing during the adjudication
of the Motion, and presenting them for the first time now on
appeal is insufficient to preserve them for appellate review. [See]
Pa.R.A.P. 302(a); [see also Beemac Trucking, LLC], 134 A.3d
at 1058.
* * *
Simply put, the Order permitted Mother to meet with [] Child’s
counselor to discuss her concerns with him and [] Child’s
treatment. Father was permitted, but not required, to attend the
meeting. All other communications with the counselor were to be
conducted in the presence of both parties and were to be initiated
when deemed appropriate by the counselor. Mother, moreover,
would receive written updates about [] Child’s counseling
sessions, as issued. The Order also permitted the parties to skip
the Generations conciliation and proceed directly to judicial
conciliation if they desired. This issue is now moot as Allegheny
County no longer conducts Generations conciliations. Finally,
nowhere did the Order preclude Mother from returning to the
[c]ourt to obtain relief related to [] Child’s counseling or custody
or with respect to any other matter. Mother, however, has refused
to even attempt to schedule an appointment with the counselor,
and has instead appealed the Order. For the reasons set forth
- 11 -
J-A18045-19
above, Mother’s arguments for the reversal and/or vacation of the
Order should be rejected. The Order should be affirmed.
Trial Court Opinion, 4/17/19, at 9-15 (citations to record omitted).
Upon review, for the reasons stated by the trial court, as set forth above,
we affirm the trial court’s order.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2019
____________________________________________
9 While not specifically addressed by the trial court, the issue of Child’s
counselor is ancillary to a determination of legal custody and, therefore, does
not require analysis of the custody factors pursuant to 23 Pa.C.S.A. § 5328.
See S.W.D. v. S.A.R., supra; see also M.O. v. J.T.R., supra.
- 12 -