J.R. v. L.T.

J-A29027-15, J-A29029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.R., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L.T.,
Appellee No. 391 WDA 2015
Appeal from the Order February 13, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 07-003697-004
J.R., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L.T.,
Appellee No. 495 WDA 2015
Appeal from the Order Dated March 25, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 07-003697-004
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2015
J-A29027-15, J-A29029-15
In these consolidated appeals,1 J.R. (“Father”) appeals the March 25,
2015 custody order awarding him and L.T. (“Mother”) shared physical
custody and shared legal custody of their minor son, J.R., Jr. Father also
appeals the interlocutory discovery order that prohibited him from serving
subpoenas in the then-ongoing custody litigation without leave of court and
awarded Mother counsel fees totaling $2,290.75.2 We affirm.
J.R., Jr. was born out of wedlock during April 2007 of Mother and
Father’s relationship. Since his birth, J.R., Jr. either resided with Mother
alone or with Mother and Father in an intact family. For the first three years
of their son’s life, Mother maintained primary physical custody and Father
exercised periods of partial custody under an informal arrangement. On July
27, 2010, Father filed a custody complaint seeking primary physical custody.
On the same date, he seized J.R., Jr. under the guise of a pre-arranged
custody exchange. He refused to return the child to Mother unless she
reconsidered her objection to rekindling their romantic relationship. Mother
countered Father’s actions by contemporaneously filing a counterclaim for
primary physical custody and sole legal custody and an emergency petition
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1
As these matters involve identical parties and stem from an interrelated set
of facts, we consolidated the appeals for disposition.
2
Upon the entry of a final order, a party can challenge the propriety of
interlocutory orders that were not immediately appealable as of right. Quin
v. Bupp, 955 A.2d 1014, 1020 (Pa.Super. 2008) (“[A] notice of appeal filed
from the entry of the final order in an action draws into question the
propriety of any prior non-final orders”).
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for relief pursuant to Pa.R.C.P. 1915.13, seeking the immediate return of her
son. On August 10, 2010, the trial court entered an interim order directing
J.R., Jr.’s immediate return to Mother’s physical custody. That order
awarded Father four hours of supervised physical custody per week.
A subsequent order extended Father’s periods of physical custody to
alternating weekends, and on January 3, 2011, the parties entered an
interim consent agreement whereby they shared physical custody on an
alternating weekly basis. Since then, the parties have litigated yearly
custody or contempt-related issues.
The trial court summarized the latest developments in the custody
dispute as follows:
Recent history starts in February 2014, when the parties were
able to reach a consent agreement . . . outlining the custody
arrangement. The parents agreed that they would share
physical custody on a week-on week-off basis. The parents
further agreed that legal custody would be largely shared,
though Mother had the sole legal right to choose schools for the
child. [T]his consent agreement did very little to stem the influx
of litigation. The parties routinely returned to motions court.
The conflict again culminated in two trials: one on contempt
before Hearing Officer Valles in November 2014 and one on
custody[.]
The latest custody trial comes by way of Father’s Petition
for Special Relief-Custody (which this Court deemed a request
for custody modification), dated July 10, 2014, and by Mother’s
Cross-Complaint for Modification of Custody Order, dated August
26, 2014. Father later brought forth new matters of contempt
and new requests regarding custody. This Court consolidated
those matters with the already-scheduled February 2015 custody
trial. The trial lasted two and [one-]half days[.] On March 24,
[2015,] the parties appeared, and this Court made findings of
fact on the record and issued its order.
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Trial Court Opinion, 5/29/15, at 6-7 (citations to the record omitted).3 As it
relates to the instant appeal, the trial court awarded shared legal custody
but designated specific authority over certain matters to each parent.
Mother was empowered to make educational and routine medical decisions.
Father was vested with authority over their son’s dental, orthodontic, and
optical care. Essentially, he objects to sharing legal custody with Mother.
On April 6, 2015, Father filed a Rule 1925(b) statement articulating
nine claims, which he reiterates on appeal as follows:
1. Did the Honorable Court err in its discretion regarding the
best interest of the child pursuant to 23 P[a].C.S. §5323, 23
P[a].C.S. § 5328 [(a),] and 23 P[a].C.S. §5328[(b)]?
2. Did the Honorable Court err in its decision to forbid the non-
custodial parent the right to be present at any non-public events
or areas, including such places as locker-rooms?
3. Did the Honorable Court err in its decision to remove
[Father’s] shared legal right to educational custody/decision
making of the minor child . . . ?
4. Did the Honorable Court err in its decision to remove
[Father’s] shared legal right to medical decisions, including
authorizing services, and attending medical appointments of the
minor child . . . ?
5. Did the Honorable Court err in its decision to remove the
requirement of advanced notice on travel itineraries outside of
Allegheny County?
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3
The trial court recited its consideration of the relevant best-interest factors
on the record during the March 24, 2015 hearing. See N.T., 3/24/15, at 2-
8. Father does not articulate a specific challenge to the court’s consideration
of the factors enumerated in 23 Pa.C.S. § 5328(a).
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J-A29027-15, J-A29029-15
6. Did the Honorable Court err in the denial of New Matters and
Petition for Special Relief Custody [filed on] January 30,
2015 . . . ?
7. Did the Honorable Court err in its review of the evidence
provided by the Appellant . . . ?
8. Did the Honorable Court err in allowing [Mother’s]
testimony without supporting evidence . . . ?
9. Did the Honorable Court err in allowing [Mother’s]
testimony and evidence of items/ circumstances that she
previously rules the plaintiff could not testify to or provide
related evidence . . . ?
Father’s brief at 2-3.
We review the trial court’s custody order for an abuse of discretion.
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial
court’s factual findings that are supported by the record and its credibility
determinations. Id. This Court will accept the trial court’s conclusion unless
it is tantamount to legal error or unreasonable in light of the factual findings.
Id.Although Father presents nine arguments in his statement of questions
presented, he levels only seven arguments in his brief. As Father’s list of
questions presented do not correspond with his arguments, we address his
contentions as they appear in the argument section of his brief. Primarily,
Father asserts that the trial court erred or abused its discretion in fashioning
an award of shared legal custody whereby Mother maintained authority to
decide matters regarding education and medical decisions. The crux of this
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assertion is that the certified record does not reveal that the parties
exhibited the minimum level of cooperation required to maintain shared
legal custody. He contends that Mother is the source of discord, and since
he is the blameless party, he should exercise sole legal custody. Father
further argues that the trial court employed a gender bias in overlooking
Mother’s prior contemptuous conduct and in promoting Mother’s interest in
governing the child’s education and medical decisions over his. These
assertions subsume the first, third, and fourth arguments Father raised in
his brief.
In Yates v. Yates, 963 A.2d 535 (2007), this Court reiterated the
three considerations relevant to whether a trial court should award shared
legal custody in a highly contentious custody dispute. We explained,
In determining whether to award shared legal custody, the
trial court must consider the following factors: (1) whether both
parents are fit, capable of making reasonable child rearing
decisions, and willing and able to provide love and care for their
children; (2) whether both parents evidence a continuing desire
for active involvement in the child's life; (3) whether the child
recognizes both parents as a source of security and love; and (4)
whether a minimal degree of cooperation between the parents is
possible.
Id. at 542. Herein, Father challenges only the court’s consideration of the
factor concerning the minimal degree of cooperation. He does not dispute
the trial court’s rationale as it relates to any other aspects of the relevant
consideration.
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In rejecting Father’s positions, the trial court first noted that Mother
and Father both were fit parents who desired continuing involvement in J.R.,
Jr.’s life, and who are both viewed as a source of security and love. Next,
the court concluded that awarding Mother sole decision making authority
over education and medical decisions was in J.R., Jr.’s best interest. In
contrast to Father’s perspective of Mother as an antagonist, the trial court
believed that Father’s animosity toward Mother, and his persistent desire to
litigate aspects of the custody arrangement that he finds unsatisfactory, are
affecting J.R., Jr. negatively. Hence, in an attempt to alleviate some of the
conflicts, the trial court crafted a legal custody arrangement that provided
each parent unilateral authority over some aspect of their son’s life. The
trial court intended to create clearly demarcated lines of parental authority
to limit Father’s involvement in areas of J.R., Jr.’s life where his participation
has proven to be counter-productive to the child’s best interest. Thus, the
court concluded that, even after acknowledging that the level of parental
opposition that exists in this case would normally impede the grant of shared
legal custody, providing Father unilateral authority over certain areas of his
son’s dental, orthodontic, and optical care and granting Mother sole
authority over educational decision-making and routine medical decisions,
would best serve the child. For the following reasons, we find that the trial
court did not abuse its discretion by incorporating these limited exceptions to
the award of shared legal custody.
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J-A29027-15, J-A29029-15
Referencing, without discussion, our holding in Hill v. Hill, 619 A.2d
1086 (Pa.Super. 1993), Father asserts that the legal custody arrangement
that the trial court crafted is antithetical to the concept of shared legal
custody. While Father’s statement is an accurate representation of the law
when one parent wields ultimate authority to decide any parenting disputes,
that factual scenario is not at issue herein.
In Hill, supra, we addressed whether the trial court erred in awarding
shared legal custody with the added designation that, “In the event of
disagreement, Mother's preference shall prevail.” Id. at 1088. We held that
the trial court’s structure of legal custody was tantamount to providing “the
father authority in name only” because his decisions would always be subject
to the mother’s preferences. Id. at 1088. That is, the father could exercise
legal custody unless or until Mother disagreed with any one decision, and if
that occurred, she had final authority. Accordingly, we rejected the
purported grant of shared legal custody.
In contrast to the facts we encountered in Hill, where one parent
exercised ultimate decision-making authority over every possible
disagreement, instantly, the trial court bestowed upon Mother and Father
ultimate authority over specific facets of their son’s healthcare and
education. They share legal custody over all remaining aspects of J.R., Jr.’s
life and neither party is empowered to make those decisions unilaterally.
The distinguishing feature of this case alleviates the precise problem that we
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highlighted in Hill, as neither parent in the present case is exercising legal
custody in name only. Thus, Father’s allegation of error is unpersuasive.
Additionally, we observe that Father mistakes the trial court’s factual
findings that he, rather than Mother, is the source of dissonance and its
concomitant credibility determinations in Mother’s favor, as gender bias.
Notwithstanding his protestations to the contrary, the certified record belies
Father’s claim of bias. The record reveals that Father is overbearing in his
interactions with Mother and often exploits his interactions with Mother as
opportunities to berate her and accuse her of perceived malfeasance.
For example, Megan Edwards, the school psychologist who attends
J.R., Jr.’s individualized education plan (“IEP”) meetings, testified that
Father’s behavior during an August 2013 IEP meeting was particularly
troubling. N.T., 2/18/15, at 239, 243. Father interjected during the
meeting that Mother was not married, and he subsequently transmitted
emails to school staff indicating that Mother had been fired from her
employment or evicted from her home. Id. at 239. As it relates to Father’s
comments concerning Mother’s marital status, Ms. Edwards testified that
Mother deflected the intended insult and redirected Father by stating, “I’m
not going to get into this here . . . Let’s proceed with the . . . IEP meeting.”
Id. at 246. Father did not deny the altercation during the hearing; instead,
he diminished the incident as a five second interaction that did not upset
anyone other than Mother. Id. at 247. Ms. Edwards has also witnessed
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Father insult Mother in front of school staff on other occasions in an attempt
to goad her into retaliation. Id. at 239. In sum, she opined that, while
Father is genuinely interested in J.R., Jr.’s development, he is also interested
in inciting Mother and catching her in a lie. Id. Plainly, the record belies
Father’s assertion that Mother is the source of the parental discord and his
underlying allegation of trial court bias.
Father’s next set of complaints implicate the second and fifth
arguments that he asserts in his brief. He advances two bare contentions
challenging the propriety of two aspects of the trial court’s decision. First,
he assails the restriction that precludes Mother and Father from appearing at
non-public events and in private areas such as locker rooms and dressing
rooms when they do not have custody. Next, Father complains that the
court removed from the custody order a previously-used provision that
required the custodial parent to provide advance notice of any plans to
travel outside of Allegheny County. In its Rule 1925(a) opinion, the trial
court explained that J.R., Jr. would be better served if Mother and Father
limited their public interactions. See Trial Court Opinion, 5/29/15, at 14.
Hence, the court fashioned the custody order to “[eliminate] the tension and
conflict that the child must endure when his parents attempt to co-parent [in
public].” Id. at 14. Similarly, the trial court found that the notice
requirement created more tension and conflict between the parties than it
alleviated. It reasoned, “Both parents are capable and fit enough to travel
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with the child without the added burden of including the other [in its decision
making].” Id.
Father neglects to support either of the foregoing claims with legal
argument or citation to relevant legal authority. He simply posits that these
aspects of the trial court’s decisions are contrary to J.R., Jr.’s best interest.
Father’s contentions ignore our limited standard of review and the deference
that we have for the trial court’s fact-finding. See S.W.D., supra. Herein,
Father neglected to present any meaningful challenge to the court’s findings
or establish that the trial court’s best-interest determination is tantamount
to legal error or unreasonable in light of the factual findings. As Father
failed to present any substantive argument to support his naked assertions
of error, no relief is due. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super.
2011) (“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.”).
Father’s next assertion appears to contest the manner in which the
trial court disposed of his “‘New Matter’s [sic] and Request for Special Relief’
based on her bias[.]” Father’s brief at 12. This claim corresponds to the
sixth argument asserted in his brief. Essentially, he complains that the trial
court consistently ignored the allegations of contempt he directed toward
Mother. In confronting this issue, the trial court explained that it addressed
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Father’s “new matter” by denying his serial contempt allegations following
the custody hearing. The court explained,
On this matter, Father simply failed to make any case for
contempt[.] His petition for contempt was largely incoherent,
merely reiterating certain provisions of the February 5, 2014
consent order. . . . [Moreover,] much of the discussion about
contempt involved a previous contempt trial before [a hearing
officer]. That hearing is the subject of a related appeal before
the Superior Court. See 494 WDA 2015. In other words,
Mother’s alleged contemptuous acts had already been
adjudicated, and Father was attempting to re-litigate the matter
before this Court. This court allowed Father to present evidence
of contempt between the November 2014 trial and the January
30, 2015 petition, but he could not do so.
Trial Court Opinion, 5/29/15, at 15 (citation to record omitted). In light of
the trial court’s explanation and Father’s failure to present any evidence of
bias other than the trial court’s alleged refusal to accommodate his pro se
status, this claim fails.
Furthermore, we observe that the record does not support Father’s
assertion that the trial court failed to accommodate his pro se status. The
court noted, “this [c]ourt cannot liberally construe Father’s arguments
[relating to Mother’s tardiness in returning Father’s telephone calls]. He
expected a great deal of his testimony and evidence to speak for itself.
Unfortunately, not everything was as obvious for the Court as it was for
Father.” Id. at 16. Stated simply, after hearing the relevant evidence, the
trial court concluded that Father failed to establish any contemptuous
behavior. It reasoned that any harm related to Mother’s presumed failure to
return all of Father’s telephone messages promptly was de minimus.
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Additionally, the court determined that under the circumstances presented in
this case, Father’s incessant telephone calls during Mother’s custodial
periods was tantamount to harassment. Father failed to refute the trial
court’s finding.
Father’s final substantive issue relative to the March 25, 2015 custody
order is that the court erred in discounting his evidence and crediting
Mother’s uncorroborated evidence. This assertion correlates with the
seventh contention leveled in Father’s brief. In its entirety, Father levels the
following argument:
It is clear [by] the dramatic changes between the Custody Order
the parties walked in with and the Custody Order that was
handed down by the Trail [sic] Court that [Mother’s] testimony
was deemed creditable [sic] without supporting evidence. Were
as [sic] [Father] provided amble [sic] evidence to the contrary of
[Mother] and . . . [her] [w]itnesses’ testimony. In doing so, the
Trial [sic] Court abused it’s [sic] discretions [sic], making visible
it’s [sic] bias in the proceedings. Pa. § 33 Rule 2.3 a&b.
Father’s brief at 13.
This assertion fails for at least two reasons. First, the claim is woefully
underdeveloped and without reference to relevant legal authority beyond the
unintelligible reference to Rule 2.3. Hence, it is waived. In re W.H., supraat 339 n.3. Second, as previously noted, the trial court did not share
Father’s apparent perspective that the evidence he presented was obvious
and indisputable. Father’s argument ignores our well-ensconced deference
for the trial court’s role as the ultimate arbiter of fact and its credibility
determinations. S.W.D., supra. Plainly, we will not reweigh Father’s
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evidence in order to reach a more favorable conclusion. For either of these
reasons, Father’s claim fails.
Next, we address the issues raised in Father’s appeal, designated as
391 WDA 2015, from the February 13, 2015 discovery order prohibiting him
from serving subpoenas without leave of court and ordering him to pay
Mother’s counsel fees associated with challenging the twenty-three
subpoenas that he filed in this matter. No relief is due.
The following facts are relevant to our review. Prior to the February
18, 2015 custody trial, Father served twenty-three subpoenas on various
colleges, school districts, and financial service companies demanding the
production of documents and discovery relating to Mother.4 Father
neglected to obtain leave of court to conduct discovery and he failed to serve
Mother with notice of his intent to engage discovery or provide copies of the
discovery requests. Mother objected to the barrage of discovery requests
pursuant to Pa.R.C.P. 4009.21 (c), and filed a motion for a protective order
seeking to preclude Father from continuing his behavior. She alleged that
Father misused the court’s subpoena powers for illegitimate reasons and to
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4
Other than one subpoena that inquired about Mother’s correspondence
with J.R., Jr.’s school district, all of the remaining subpoenas directed the
recipients to produce Mother’s personal information regarding her education
transcripts, applications for admissions, financial aid assistance,
employment, and mortgage applications. Father has never proffered an
explanation as to how the bulk of his discovery request was relevant to the
underlying dispute with Mother regarding which parent should exercise legal
custody.
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request information that was irrelevant to the underlying custody
determination. She entreated the trial court to issue a protective order
preventing Father from engaging in further misuse of the subpoena process
and she sought reimbursement of her counsel fees pursuant to § 5339 of the
Child Custody Law.
Although Father filed a response to Mother’s motion, he neglected to
appear during the ensuing hearing. On February 13, 2015, the trial court
granted Mother’s motion for a protective order and awarded counsel fees
totaling $2,290.75. The trial court determined that Father ignored the rules
of civil procedure both by circumventing the deterrence of discovery in
custody matters without leave of the trial court and by failing to provide
Mother with notice of his intention to file the subpoenas upon the twenty-
three recipients. In reaching its decision, the court stressed that in
attempting to collect personal information about Mother that was irrelevant
to the custody dispute, Father ignored the procedural orders that were
“designed to prevent this very situation form occurring.” Trial Court Opinion,
5/29/15, at 5. The trial court further reasoned that counsel fees were
warranted in this case due to Father’s conduct and concluded that Mother
established the costs that she incurred attempting to undo the harm caused
by Father’s vexatious behavior. Id.
On appeal, Father asserts five separate issues and supports each with
arguments of varying degrees of lucidity. Most of Father’s arguments are
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composed of two or three conclusory sentences that either 1) assail the trial
court’s civility and professional integrity; or 2) challenge the court’s decision
to hold the hearing in his absence. None of Father’s five enumerated
arguments challenges the trial court’s findings of fact regarding his conduct
or its conclusion that the service of approximately two dozen subpoenas was
in bad faith and tantamount to obdurate and vexations conduct.
From what we can ascertain from Father’s meager arguments and the
summary of argument section of his brief, Father contends that he was not
able to attend the February 3, 2015 hearing due to his long-planned travel
commitment that he was not willing to alter. Father continues that he
advised the trial court of the scheduling conflict in his response to Mother’s
motion for special relief and that he anticipated that the trial court would
extend to him the same courtesy that it had extended to Mother to
accommodate her scheduling conflicts in the past.
Substantively, Father does not contest the finding that he served the
subpoenas on the various institutions in violation of the rules of civil
procedure. However, as it relates to the notice issue, he maintains that he
mailed to Mother the required notices and copies of the subpoenas but that
the documents were returned to him undeliverable. In this regard, he posits
that the trial court ignored his efforts to comply with the procedural rules in
fashioning the protective order and award of attorney’s fees. For the
following reasons, Father’s claim is unpersuasive.
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Pursuant to both Pa.R.C.P. 1930.5 relating to discovery in domestic
relations matters generally and Pa.R.C.P. 1915.5(c) concerning custody
proceedings specifically, discovery is not permitted in custody matters
absent leave of court. The general rule provides, “There shall be no
discovery in a simple support, custody or Protection from Abuse proceeding
unless authorized by order of court.” Pa.R.C.P. 1930.5. Likewise, the
provision included in the portion of the rules concerning custody matters
reiterates, “The shall be no discovery unless authorized by special order of
court.” Id.
Instantly, it is beyond peradventure that Father violated the rules
restricting discovery in custody cases absent the trial court’s express
authorization. See Pa.R.C.P. 1915.5(c) and 1930.5. Moreover, it is equally
clear from the procedural history that Father failed to serve Mother copies of
the subpoenas pursuant to Pa.R.C.P. 4009.21 or provide her the required
twenty-day notice to object. While Father professes to have mailed the
documents, upon their return to him unclaimed, he had actual knowledge
that Mother was not served. Rather than attempt to perfect service of the
notice of the unsanctioned subpoenas, Father proceeded unilaterally and
served approximately two dozen subpoenas on various educational and
financial institutions seeking Mother’s private information. As the record
supports the court’s determination that Father disregarded the Pennsylvania
Rules of Civil Procedure in serving the twenty-three subpoenas to institutions
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that were not involved in his custody dispute with Mother, we will not disturb
the trial court’s interlocutory discovery order that precluded Father from
issuing subpoenas without its specific authorization and awarding Mother
$2,290.75 in attorney fees.
Thus, for all of the foregoing reasons, we affirm the February 13, 2015
award of counsel fees and the March 25, 2015 order granting Mother and
Father shared physical custody and shared legal custody of their son.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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