Corbin, A. v. Mays, R.

J-S09017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD B. MAYS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHLEIGH R. CORBIN :
:
Appellant : No. 1693 EDA 2021
Appeal from the Order Entered July 28, 2021,
in the Court of Common Pleas of Philadelphia County,
Domestic Relations at No(s): 0C1307838.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 14, 2022
Appellant Ashleigh R. Corbin (Mother) appeals from the order which:
awarded Appellee Richard B. Mays (Father) sole legal and primary physical
custody of their 9-year-old daughter N.M. (the Child); denied Mother’s request
that the Child relocate to Virginia; and found both parties in contempt. See 23
Pa.C.S.A. §§ 5328(a); 5337(h); 5323(g). Mother does not challenge the
substantive custody or contempt decisions but alleges that the trial judge’s
courtroom procedure and personal antagonism deprived her of a fair trial
thereby violating her constitutional right to due process. While we do not
condone the behavior of the trial court (or Mother’s counsel), we ultimately
discern no error. After careful review, we affirm.
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* Former Justice specially assigned to the Superior Court.
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The relevant history begins in April 2019, when the trial court denied
Mother’s request that the Child relocate with her to Virginia. Mother was in
the military and resided in various jurisdictions before ultimately moving to
Virginia. The April 2019 order allowed Mother to exercise partial physical
custody in Virginia, but Father retained primary physical custody in
Philadelphia.1
Over the next two years, the parties’ compliance with the April 2019
order ceased entirely. Mother and Father routinely withheld custody of the
Child, sometimes for months at a time. Mother had obtained the Virginia-
equivalent of a Protection From Abuse Order. When Mother alleged Father
violated the no-contact provision of that order, apparently by discussing
custody with Mother, Father was fined and temporarily incarcerated. The
Covid-19 pandemic further exacerbated the parties’ efforts to seek legal
recourse.
By the time the trial court presided over the subject hearing, the court
had before it seven petitions, all of which concerned either contempt or
custody modification.2 The consolidated hearing spanned two dates – March
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1Mother appealed the April 2019 order, but this Court quashed her appeal as
untimely.
2 Mother brought the following petitions: petition for contempt of custody (filed
on April 16, 2019); petition to modify custody (filed on July 19, 2019); petition
for contempt of custody (filed on April 10, 2020); and a petition for contempt
and modification of custody (filed on August 3, 2020). Father brought the
following: petition for contempt of custody (filed March 9, 2020); motion for
(Footnote Continued Next Page)
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25 and July 20, 2021. The court held the first day of the hearing remotely in
accordance with Covid-19 protocols. There were immediate complications.
Mother’s counsel experienced technical difficulties, and it was unclear whether
counsel properly submitted her pre-trial, custody-related exhibits. The court
granted Father’s request to continue the custody portion of the hearing; thus,
the court proceeded only with the contempt portion on the first day.
The testimony centered on why the parties withheld custody in violation
of the operating custody order. Mother alleged that the Child was unsafe in
Father’s care. Father evidently withheld custody because he felt entitled to
lost custody time. Then Mother withheld because Father withheld. The court
also conducted an in camera interview with the Child. The record does not
contain a transcript of the conversation, however, because the trial court
declared that the conversation was sealed. See N.T. 3/25/21 (Day 1), at 33-
34.3
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expedited relief and contempt of custody (filed on March 1, 2021). At the
hearing, Father withdrew his petition for contempt of custody (filed on
February 26, 2019). Father also petitioned the court to appoint a guardian ad
litem for the Child. We note further that the presiding trial judge changed
between the April 2019 order and the subject hearing in 2021.
3 We caution the trial court that the in camera interview must be made part
of the record, pursuant to Pa.R.C.P. 1915.11(b); see also Ottolini v.
Barrett, 954 A.2d 610 (Pa. Super. 2008) (holding that the trial court erred
when it failed to make the interview part of the record at the time of the
parent’s appeal). Instantly, neither party objected to the court’s in camera
procedure, nor raised the issue on appeal. For the purposes of this appeal,
the lack of an interview record does not impede our review.
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Notably, tensions flared between Mother’s counsel the trial court. At
one point the court found counsel in contempt and terminated counsel’s cross-
examination of Father. The court did not render contempt findings after the
first day. Rather, the court issued an interim order appointing the Child a
guardian ad litem (GAL), and awarded Father interim primary physical custody
until the second day of the hearing a few months later.
The GAL subsequently met with the parties and the Child and issued a
report. The report noted that the Child is bright and friendly, but that she was
reluctant to answer even indirect questions about her parents. The GAL found
that the Child tried to be loyal to each parent. Although the GAL found both
parents to be loving, the GAL had concerns with the parties’ parenting.
The GAL described Father’s parenting style as somewhat lax. The GAL
was also concerned that Mother does not allow the Child to feel sadness about
leaving Father’s care. More concerning, the GAL found that Mother’s refusal
to co-parent negatively affected the Child both physically and emotionally. For
instance, the Child once received double immunizations because the parents
were not on the same page. The GAL opined that Mother uses the Child as
“evidence” of Father’s poor parenting to bolster her legal case – i.e., Mother
photographed the Child’s dirty clothes after she returned from Father’s care.
But most alarming for the GAL was the fact that Mother had failed to ensure
that the Child received necessary treatment from an endocrinologist for a
medical condition called “precocious puberty.” Because Mother had withheld
custody in Virginia, the Child missed doctor appointments in Philadelphia.
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The second day of the hearing was conducted in-person, on July 20,
2021. After a preliminary discussion about procedure, the court began with
the substantive custody portion of the hearing. The court heard testimony
from the GAL, Father, and Mother. The court also conducted a second in
camera interview of the Child; though again, no record of the conversation
was submitted.
The tensions between Mother’s counsel and the trial court permeated
the second day just as it did the first. One particularly heated moment
involved Mother’s testimony about a custody exchange. The designated
location of the custody exchange was at a police station. The Child was upset
during the custody exchange, so Mother asked a police officer to speak with
the Child. The trial court found Mother’s testimony to be duplicitous, as
demonstrated by a series of pointed questions. Mother’s counsel then
sarcastically remarked: “Well, I’m so glad you [the court] were there and knew
what happened.” See N.T. (Day 2), 7/20/21 at 313. The court warned counsel
she would be found in contempt if her behavior did not change. Id. at 318.
The testimony ultimately resumed.
At the end of the hearing, the trial court announced it would award
Father primary physical and sole legal custody. The court believed Mother
was more concerned with alienating Father, than she was with the Child’s best
interests. The court further found that Mother’s animosity toward Father
caused the Child to inadvertently suffer both physical and mental harm.
Ultimately, the court did not believe Mother’s allegations that Father was
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abusive, but that Mother actively tried to defeat the operating custody order
by obtaining relief in other jurisdictions.4 The court was also persuaded by
the GAL report, which the court found to be “dead on.” Id. at 389. After the
court announced its decision, Mother was naturally upset, and when Mother
volunteered her disagreement, the court noted for the record that Mother had
threatened the court. Id. at 436.
The following week, the court issued three documents: the formal
custody order; a delineation of its findings under Section 5328(a); and a
delineation of its findings under Section 5337(h). See Orders of Court,
7/26/21. The custody order also included a provision finding both parties in
contempt. The court did not order any sanctions, in apparent circumvention
of 23 Pa.C.S.A. § 5323(g). See Harcar v. Harcar, 982 A.2d 1230, 1240 (Pa.
Super. 2009) (holding that the trial court abused its discretion for failing to
impose sanctions on a parent who flagrantly disregarded a custody order).
However, neither party appealed that court’s contempt decision or the lack of
sanctions.
Mother timely-filed this appeal and presents the following three issues
for our review:
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4 A focus of the hearing was Mother’s receipt of the Virginia order of protection.
The parties addressed whether the protective order was issued ex parte or
after a hearing on the merits, and then whether the Virginia court’s finding of
“family abuse” constituted Father’s physical abuse of the Child or Mother, or
both. Ultimately, the court afforded little weight to the existence of the
Virginia protection order.
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1. Whether the trial court erred in failing to address the
due process and procedural violations in its
[Pa.R.A.P.] 1925 opinion or its earlier court order?
2. Whether the trial court violated Mother’s due process
rights such that her trial was unfair?
3. Whether the trial court evidenced a bias, berated
Mother and her counsel, such that Mother was denied
a fair trial and the court abused its discretion and
otherwise erred as a matter of fact and law?
Mother’s Brief at 28.5
Typically, we review child custody orders for an abuse of discretion. S.T.
v. R.W., 192 A.3d 1155, 1160 (PA. Super. 2018). We have explained that a
court abuses its discretion when, inter alia, “the course pursued represents
not merely an error of judgment, but…where the record shows the action is a
result of partiality, prejudice, bias or ill will.” Lewis v. Lewis, 234 A.3d 706,
722 (Pa. Super. 2020) (citations omitted). However, when a parent presents
a due process challenge – as is the case here – our review changes:
A question regarding whether a due process violation
occurred is a question of law for which the standard of
review is de novo and the scope of review is plenary.
S.T., 192 A.3d at 1160. (citations omitted).
In her first issue, Mother alleges the trial court failed to comply with the
appropriate procedure following an appeal from a custody order. Under the
Child Custody Act, the trial court must consider the 16 child custody factors,
as well as the 10 relocation factors, when resolving a relocation petition that
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5 Father did not file an appellee brief, nor did the GAL, whose appointment
expired with the entry of the final custody order.
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would result in a changed custody award. See A.M.S. v. M.R.C., 70 A.3d 830,
836 (Pa. Super. 2013); see also 23 Pa.C.S.A. §§ 5328(a), 5337(h). After
reaching a decision, the trial court must then delineate its reasons for the
award on the record in open court, or in a written opinion or order. See 23
Pa.C.S.A. § 5323(d). Moreover, a trial court must delineate its reasons near
the time of the decision, or else the litigant would not be able to take an
effective appeal. See A.M.S.; see also C.B. v. J.B., 65 A.3d 946, 953-54
(Pa. Super. 2013). After a party files a notice of appeal and concise statement
of errors complained of on appeal, the trial court must issue an opinion in
accordance with Pennsylvania Rule of Appellate Procedure 1925(a)(1).
Instantly, Mother argues the court erred when its Rule 1925(a) opinion
failed to address the due process claims mentioned in her concise statement.
See Mother’s Brief at 32.
Rule 1925(a)(1) provides, in relevant part:
[T]he judge who entered the order giving rise to the notice
of appeal, if the reasons for the order do not already appear
of record, shall…file…at least a brief opinion of the reasons
for the order, or for the rulings or other errors complained
of, or shall specify in writing the place in the record where
such reasons may be found.
Pa.R.A.P. 1925(a)(1).
In its Rule 1925(a) opinion, the trial court dedicated only two sentences
to Mother’s allegation that the court evinced bias and violated Mother’s right
to due process: “In her [] appeal, Mother alleges the [t]rial [c]ourt
demonstrated bias and prejudice against [Mother] and/or her counsel. The
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transcript of record, however, does not support this assertion.” Trial Court
Opinion (T.C.O.), 9/14/21, at 4. Mother likens the instant case to C.B. to
argue that the court’s failure to expound upon its procedural rulings prevented
her from taking an effective appeal. See Mother’s Brief at 34. She concludes
that we must vacate the custody order, and remand for a new trial with a
different jurist. Id.Mother’s reliance on C.B. is misplaced. That case concerned Section
5323(d), which only obligates a court to delineate its reasons for the custody
decision – i.e., its analysis of Section 5328(a) factors, and when appropriate,
its auxiliary analysis of the Section 5337(h) factors. Here, the trial court
complied with Section 5323(d) when it issued thorough analyses
contemporaneously with its custody order. Section 5323(d) does not obligate
a court to explain its reasoning behind its procedural rulings, however. Thus,
C.B. is inapposite. Meanwhile, Rule 1925(a) only obligates the court to
provide a brief opinion for the errors alleged if the reasons do not already
appear of record. See Pa.R.A.P. 1925(a) (emphasis added).
We conclude that the trial court complied with Rule 1925(a). First, the
reasons behind the court’s procedural rulings were self-evident in the record.
As such, Mother was not prevented from taking an effective appeal. Second,
the court’s limited discussion does not impede our review. As Mother
recognizes, her due process challenges present questions of law, which we
review de novo. In this case at least, our analysis does not turn on the trial
court’s factual findings, which we usually glean from the Rule 1925(a) opinion.
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Finally, we observe that even if we agreed the opinion was deficient, the
remedy would not be a new trial, as Mother claims, but a remand to allow the
trial court to submit a more detailed opinion and then allow the litigants to
submit new briefs.6 Mother’s first issue merits no relief.
We address Mother’s second and third issues contemporaneously.
According to Mother, the trial court’s due process violations fall into two
general categories: 1) the trial court’s procedural rulings (that is, how the
court conducted its hearing); and 2) the trial court’s statements, which Mother
claims reveal its bias. With this in mind, we turn to the relevant law.
On multiple occasions, both the Supreme Court of Pennsylvania and the
Supreme Court of the United States have acknowledged that parents enjoy a
fundamental constitutional right to raise their children as they deem fit. See,
e.g., Interest of S.K.L.R., 256 A.3d 1108, 1126 (Pa. 2021); see also D.P.
v. G.J.P., 146 A.3d 204 (Pa. 2016); and see Troxel v. Granville, 530 U.S.
57 (2000) (recognizing the existence of a constitutionally protected right of
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6 We also observe that Mother initially raised ten issues in her concise
statement of errors, eight of which pertained to the substantive custody
decision. See Mother’s Brief at 28 (statement of questions involved); cf.
Mother’s Brief at 21-22 (concise statement of errors complained of on appeal).
Consequently, the trial court’s opinion focused on its custody decision. Only
after the court issued its Rule 1925(a) opinion, did Mother abandon the eight
issues dealing with custody. We can certainly appreciate Mother’s decision to
preserve only those errors she believes warrant the most merit. But by the
same token, we cannot penalize the trial court for failing to anticipate that
Mother would subsequently forgo the heart of her appeal.
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parents to make decisions concerning the care, custody, and control of their
children) (citing U.S.C.A. Const. Amend. 14).
Thus, procedural due process must be afforded to parents whenever
they may be deprived of their right to custody. S.T., 192 A.3d at
1161 (citing J.M. v. K.W., 164 A.3d 1260, 1268 (Pa. Super. 2017)(en banc)).
“It is well-settled that procedural due process requires, at its core, adequate
notice, an opportunity to be heard, and the chance to defend oneself before a
fair and impartial tribunal having jurisdiction over the case.” J.M., 164 A.3d
at 1269, n.5 (citation omitted). We have explained further that “[b]oth notice
and an opportunity to be heard must be afforded at a meaningful time
in a meaningful manner. S.T., 192 A.3d at 1164 (emphasis original)
(citing Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005)).
Specifically, the right of a litigant to an in-court presentation of evidence
is essential to due process; when important decisions turn on questions of
fact, due process requires an opportunity to confront and cross-examine
witnesses. Plowman v. Plowman, 597 A.2d 701, 705 (Pa. Super. 1991);
see also Goldberg v. Kelly, 397 U.S. 254, 269 (1970). Without notice and
an opportunity to be heard, a party cannot properly advocate his or her
position, nor expose all relevant factors from which the finder of fact may
make an informed judgment. See S.T., 192 A.3d at 1164 (citing Everett,
889 A.2d at 580).
That said, due process is flexible and calls for such procedural
protections as the situation demands. Id. at 1161; see also In Interest of
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A.N.P., 155 A.3d 55, 66 (Pa. Super. 2017). For instance, the Pennsylvania
Rules of Civil Procedure provide:
The rules shall be liberally construed to secure the just,
speedy and inexpensive determination of every action or
proceeding to which they are applicable. The court at every
stage of any such action or proceeding may disregard any
error or defect of procedure which does not affect the
substantial rights of the parties.
Pa.R.C.P. 126.
We begin with Mother’s first category of errors – namely, the court’s
procedure. Mother alleges the trial court’s procedure was defective in the
following ways:
• The court precluded Mother from preserving her
objections when Mother’s counsel experienced
technical difficulties during the virtual hearing.
• The court precluded Mother from cross-examining
Father after his direct testimony.
• The court precluded Mother from calling her
witnesses.
• The court precluded Mother from authenticating and
introducing more of Mother’s exhibits into evidence.
• The court should have let Mother and Father perform
direct and cross examination as they saw fit.
• The court did not allow Mother to complete her case-
in-chief on the second date, because the court wanted
to complete the hearing without issuing a second
continuance.
• The court improperly deferred its decision to the GAL.
See generally Mother’s Brief at 36-43.
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Our discussion begins with Mother’s allegation that the trial court
hindered her participation during the virtual hearing. Mother’s counsel had
technical difficulties connecting to the hearing, and once connected, counsel
initially had trouble being heard. With those issues seemingly resolved, the
substantive portion of the hearing began with Father’s direct testimony
regarding Mother’s contempt of custody. See generally N.T. (Day 1) at 35-
43.
When the court turned to Mother’s counsel for cross-examination,
counsel asked if the court heard her objections to Father’s direct testimony.
Id. at 43. Counsel said she tried to unmute herself, and that she left a
voicemail for the law clerk (apparently to alert the court of the problem). Id.
The court said counsel’s objections were not heard, and asked counsel what
those objections were. Id. Counsel told the court that she could not remember
all of them, but she stated that Father’s counsel has asked leading questions
and questions that called for a narrative. Id. at 43-44. The court simply
directed Mother’s counsel to begin her cross examination. Id.
On appeal, Mother argues the trial court erred when counsel was
“blocked” or otherwise muted by the court. (The court denied this at the
hearing. Id.) We recognize that the Covid-19 protocols have caused logistical
hardships for all, and we do not necessarily share the trial court’s view that it
had no responsibility to accommodate counsel’s technical difficulty. Id. at 57.
However, we observe that Mother’s counsel never asked for a continuance or
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represented to the court that she could not proceed.7 Mother’s counsel was
given an opportunity to state her objections and inform the court of any
testimony that the court should not consider. But counsel could not provide
any examples. We conclude Mother was not prejudiced.
Next, Mother alleges the trial court erred when it terminated counsel’s
cross-examination of Father. For support, Mother cites our decision in In
Interest of A.N.P., 155 A.3d 55 (Pa. Super. 2017). In A.N.P., the trial court
excused the mother from the proceedings, after the mother told the court she
was going to be sick. When the mother attempted to come back into the
courtroom, the court barred her reentry and then disallowed the mother’s
counsel from presenting any rebuttal testimony. A.N.P., 155 A.3d at 68. We
concluded that the trial court violated the mother’s right to due process by
depriving her of the opportunity to be heard. Id.
Here, the trial court terminated Mother’s cross-examination of Father
after repeated warnings that counsel’s questions were irrelevant and were not
made in “good faith.” See N.T. (Day 1), at 60-61. Mother’s counsel had
sought to demonstrate Father’s contempt – and to justify Mother’s withholding
of the Child – by arguing that the Child had been abused while in Father’s
care. Mother’s counsel attempted to establish the abuse by showing that the
Child had been at a party where an attendee knowingly had Covid-19, where
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7 Indeed, the court had already granted Father’s request to continue the
custody portion of the hearing, because he did not timely-receive Mother’s
proposed exhibits.
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the adults were consuming alcohol (and allegedly marijuana), and where
Father’s fiancée allegedly drove home drunk with the Child in the car. After a
while, the court did not find counsel’s questions to be relevant, particularly
because Father was not present at the party. The court admonished counsel
several times before ultimately terminating the cross-examination. Id. at 75-
76. Counsel responded she had simply been trying to lay a foundation. The
court told counsel that it had already provided ample leeway:
The court: [Counsel], you really are out of line.
You have to ask questions with [a]
good faith basis, and you are not doing
that. All you are doing here is acting
like a horrible smear campaign on
somebody with no offer of real
evidence.
Mother’s Counsel: Oh my God. It is, Your Honor. We
have pictures and everything.
[…]
The court: If you have evidence that you want to
put on [direct examination of Mother],
that’s fine. This cross-examination has
ended. […] And all you want to do is
ask repeatedly over and over again
questions that have been asked and
answered about five different ways.
We are done. […]
Counsel: I have other questions for the record.
I’m entitled to do that.
The court: [Counsel], I am done with your cross-
examination. You think you can ask
any question you want, and that’s not
going to be done in this courtroom. […]
I know, I know. There’s no record here
because I have counsel who literally
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thinks she runs the show. I am so tired
of this, [counsel]. You are in
contempt. [8] That is it. And as a result
of that, I am stopping you having any
cross-examination because you don’t
follow what this court is trying to do to
make a fair hearing for everybody.
Counsel: Your Honor, I am trying. May I make
an offer of proof?
The court: You are not sorry, [counsel]. You are
far from being sorry.
Id. at 77-78 (footnote added).
At this point, the trial court asked if Father’s counsel wished to re-direct.
Father’s counsel declined, and Mother’s counsel began her case-in-chief.
On appeal, Mother argues the trial court deprived her a meaningful
opportunity to be heard. While we have significant concerns with the
comportment of both the trial court and Mother’s counsel (as discussed infra),
we do not find that the court deprived Mother of her opportunity to be heard
when the court terminated counsel’s cross-examination of Father. The court
initially allowed Mother’s counsel to pursue her desired line of questioning to
determine whether Father’s testimony would be relevant to its contempt
decision. Once the court determined that the Child’s attendance at the
birthday party was irrelevant to the question of whether Father violated the
custody order, the court terminated this line of questioning. We cannot find
that this was improper. See Commonwealth v. Rosser, 135 A.3d 1077,
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8Apparently, the only sanction for counsel’s contempt was the termination
of her cross-examination.
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1087 (Pa. Super. 2016) (en banc) (“[T]he trial court has broad discretion
regarding ‘both the scope and permissible limits of cross-examination[;]’ [t]he
trial judge’s exercise of judgment in setting those limits will not be reversed
in the absence of a clear abuse of that discretion, or an error of law.”) (citing
Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011)).
We are more troubled by the trial court’s decision to preclude any further
cross-examination, but we conclude that the matter is ultimately moot. We
reiterate that this portion of the hearing concerned only whether the parties
were in contempt. In the end, Mother successfully proved Father was in
contempt, thus Mother was not prejudiced by the court’s ruling. See Order of
Court, 7/26/21 at 4. Insofar as Mother meant to demonstrate, through cross-
examination of Father, that her withholding was justified, Mother was able to
make such an argument during her direct examination.
Mother alleges another instance of the court preventing Mother’s
counsel from cross-examining Father. This time, the alleged error occurred
during the custody portion of the hearing. After Father’s direct testimony, the
court cautioned Mother’s counsel that she should not use the cross-
examination of Father to authenticate her hundreds of exhibits, as they can
best be authenticated during Mother’s case-in-chief. See N.T., 7/20/21 (Day
2) at 255. Counsel stated that she understood but asked to reserve time to
cross-examine Father if needed. The court agreed, and counsel proceeded to
Mother’s direct-examination. Id. at 258-59. Later, Mother’s counsel stopped
in the middle of her direct examination of Mother to cross-examine Father;
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Mother sought to authenticate Father’s use of the Child’s cellphone. After
failing to authenticate the cellphone, counsel returned to her direct
examination of Mother, and eventually rested without cross-examining Father
any further. Id. at 408. Unlike the first day of the hearing, the trial court did
not terminate Mother’s cross-examination of Father. Thus, in both instances,
we conclude the court did not deprive Mother of her right to due process.
Next, Mother alleges the trial court deprived her of an opportunity to be
heard when it precluded her from calling witnesses. See Mother’s Brief at 36,
43. On the second day, Mother planned to call both maternal grandparents,
and the maternal great-grandmother. See N.T. (Day 2) at 15. The court was
concerned with the time constraints, and asked Mother to make a proffer of
her witnesses’ testimony. Mother’s counsel proffered that the witnesses would
testify about their relationship to the Child and the Child’s experience living
with Mother in Virginia. Id. at 16. The court questioned the relevancy of this
testimony and whether the testimony would be redundant. Id., at 15-16, 25.9
Mother argued further that the maternal grandfather’s testimony could be
used to impeach the GAL’s report and testimony – i.e., the grandfather would
testify the GAL had not met with Mother long enough to render accurate
findings. Id. at 30.
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9 Father’s counsel offered to stipulate that they had no concerns about the
condition of Mother’s home, and that the Child had a wonderful relationship
with the maternal grandparents and the great-grandparent. Id. 19.
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The court directed Mother to pick one family member to testify about
the Child’s life in Virginia. As to whether the grandfather could be called to
impeach the GAL, and the court agreed to consider Mother’s request after the
lunch break – i.e., after the GAL testified. Id. at 31. But Mother’s counsel did
not raise the issue again. Id. at 163. At no point did counsel object to the
court’s ruling about the order of witnesses, nor did counsel attempt to call any
of her witnesses thereafter. This contention is waived. See Pa.R.A.P. 302(a)
(issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.).10
Next, Mother alleges the trial court precluded her from authenticating
and introducing some of Mother’s exhibits into evidence. Mother had proposed
over 900 exhibits. Some were admitted, some were not. On appeal, Mother
cannot pinpoint where in the record the trial court prevented her from
authenticating her exhibits, nor where the court ruled that certain exhibits
were inadmissible. Indeed, Mother does not allege any evidentiary rulings
were made in error. She merely articulates her general disapproval with how
the court conducted its proceedings. This contention is also waived. See
Pa.R.A.P. 302(a); see also Pa.R.A.P. 2119(e) (“Statement of place of raising
or preservation of issues”); and see Pa.R.A.P. 2101 (“Conformance with
Requirements.”).
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10 Even if not waived, the trial court has discretion to limit the number of
witnesses, and Mother did not establish that the court abused its discretion.
See Pa.R.C.P. 223(1) (“Conduct of the Trial. Generally.”); see also
Commonwealth v. Walsh, 36 A.3d 613, 621 (Pa. Super. 2012).
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In a similar vein, Mother argues the court did not let the parties perform
direct and cross-examinations as they saw fit. Mother reasons the court
should have continued the hearing for a third day. However, Mother did not
request a continuance. And again, Mother cannot cite to any specific rulings
from the record, nor instances where she preserved her objection, nor does
she provide support from relevant legal authorities. This contention is also
waived.
Finally, Mother argues the trial court improperly outsourced its custody
determination to the GAL. She relies on our decision Interest of L.B., 229
A.3d 971 (Pa. Super. 2020). In L.B., the juvenile court suspended the
appellant-parent’s visits with the child pending the recommendation of the
child’s therapist. L.B., 229 A.3d at 974. We explained that the trial court was
the ultimate arbiter of whether visitations should resume, and that the court
erred when it outsourced such a decision to the child’s therapist. Id. at 977-
78.
Instantly, Mother argues that the trial court committed the same error.
We disagree. Preliminarily, we note the GAL did not make custody
recommendations, but simply provided findings about the Child’s best
interests. The trial court’s thorough Section 5328(a) and 5337(h) analyses
reveal that the court did not defer to the GAL. If anything, the court simply
agreed that the GAL’s impressions of the Child matched the court’s
impressions from its two in camera interviews. We discern no error.
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To summarize this portion of our discussion, we conclude the trial court’s
procedural rulings did not infringe upon Mother’s right to due process. Mother
largely failed to preserve her contentions, but to the extent that she properly
raised certain issues, we find that the court’s procedure did not deprive Mother
of a meaningful opportunity to be heard, nor did the procedure substantially
affect Mother’s rights. See S.T., 192 A.3d at 1161, 1164; see also Pa.R.C.P.
126.
Our discussion now shifts to Mother’s second category of due process
errors – namely, whether the trial court evinced bias. As noted above, due
process encapsulates the right to defend oneself before an impartial tribunal.
J.M., supra. Mother argues the court displayed “blatant hostility” towards
both Mother and counsel in the following ways:
• The court continuously interrupted Mother’s counsel
before she could even complete her question, thereby
making inappropriate and premature rulings because
she misapprehended the purpose behind the question.
• The court kept interrupting testimony with her own
questions and/or statements that were not just for
clarification.
• The court made its own objections, make rulings as if
somebody had made an objection and/or would ask
opposing counsel if he had an objection.
• The court made disparaging remarks to both Mother
and Mother’s counsel.
See generally Mother’s Brief at 43-46.
We begin with Mother’s claims that the trial court repeatedly interrupted
her. Many of these contentions arose from curt exchanges between counsel
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and the trial court, usually after an objection. The court also felt compelled
to interject throughout the hearing to focus the sprawling testimony. In one
cited example, the court directed Mother’s counsel to move on after explaining
that the question had been previously addressed several times. See N.T.
(Day 1) at 61. Mother also cites examples of when the trial court interrupted
testimony to ask clarifying questions. See, e.g., N.T. (Day 2) at 265-268.
Sometimes the court’s questions were not for clarification, but to gauge the
witnesses’ credibility. Id. at 301-05. Mother cites still other instances where
the court interjected to ask Father’s counsel if he had an objection – the
inference being that the trial court sought to make Father’s case for him. Id.
at 268.
Mother argues the trial court’s interruptions evince its bias. We
disagree. Trial courts have discretion to conduct their proceedings to ensure
judicial economy. To be sure, there are examples where trial courts have
gone too far in their pursuit of efficiency. See, e.g., C.T. v. A.W.T., -- A.3d.
--, 2020 WL 1518095 (Pa. Super. 2020) (non-precedential decision) (holding
that the trial court deprived a parent of a meaningful opportunity to be heard
when the court terminated witness testimony to avoid a continuance);11 see
____________________________________________
11 Per 210 Pa. Code § 65.37 (Non-Precedential Decisions (formerly titled
Unpublished Memoranda Decisions), non-precedential decisions
filed after May 1, 2019, may be cited for their persuasive value. See also
Pa.R.A.P. 126(b).
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also Interest of T.M.W., 232 A.3d 937, 947 n.13 (Pa. Super. 2020) (noting
with disfavor the trial court’s repeated interruption of the witness.).
Here, however, Mother’s cited examples are not demonstrative of the
trial court’s bias. For one, we do not share Mother’s inference that the court
sought to make Father’s case when it asked whether he had an objection. A
court does not evince its bias simply because it anticipates an objection. But
to Mother’s larger point, that the court’s frequent interruptions hamstrung her
case, we must recognize the trial court’s role in a custody/contempt dispute.
The trial court sat as fact-finder and had an obligation to excavate the
salient details from an unfocused, consolidated hearing. We agree that the
court’s interruptions were numerous. Perhaps the court should have refrained
unnecessary commentary and allowed the litigants to present their case with
less interference. Perhaps whatever time the court saved by focusing the
hearing was lost during the court’s frequent tangents, interjections, and
sidebars. Then again, if the litigants were left to their own devices, they might
have opted to present hours of irrelevant testimony and evidence, leaving the
court with little to make an informed decision. In the end, we cannot conclude
that the trial court’s injections revealed its partiality or otherwise deprived
Mother of an opportunity to be heard. The court always ensured it understood
Mother’s arguments. See, e.g., N.T. (Day 2) at 355. Mother was heard, just
not believed.
Finally, we address what Mother’s counsel refers to as the trial court’s
“disparaging remarks.” According to Mother, these remarks reveal that the
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custody award was the result of the court’s “partiality, prejudice, bias or ill
will.” See Mother’s Brief at 38-39. In her Brief, Mother cites a series of hostile
exchanges between counsel and the trial court. The more pertinent of these,
we restate here:
Mother’s Counsel: You are interrupting me. Look at
[Exhibit 449].
The court: [Counsel], I get it. I’m not going to let
you have that demeanor and talk to me
that way.
[…]
Counsel: You’re preventing me from doing my
own job and interrupting. Can you
please look at damn 449?
The court: [Counsel], you are out of line. You are
out of line and that is it. You are done.
I am not sure why you think you can
talk to a judge that way. Where do you
get off thinking you can talk to a judge
that way? Where in the heck? And
don’t tell me you’ve been doing this for
33 years, I don’t want to hear that.
Because by now, ma’am, you should
have learned how to be a proper,
respected lawyer and you are not. You
are totally a disgrace talking to me
that way. I will talk to your client and
ask her questions when a point comes
up. I wanted to know what her
response is and she gave it to me. Do
not tell me I am not allowing you to do
your job. I have given you so much
leeway.
Counsel: You interrupted me in the middle of my
direct, Your Honor.
The Court: Tough luck. I’m allowed to interrupt.
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Counsel: You’re not allowed, Your Honor, and I
object.
See N.T. (Day 1) at 115-16 (emphasis added).
The tempers did not cool after the first day of the hearing. On the
second day, Mother’s counsel told the court during a hearsay objection, “Look,
if you have a problem with me, Your Honor, then recuse yourself from my
cases.” See N.T. (Day 2) at 28.
Mother’s counsel cites additional remarks:
The court: …I have to follow the evidentiary rules.
[Mother] can testify, but she can’t [read from
her log of Father’s lateness and no-shows
during custody exchanges] as an exhibit.
She can testify that--
Counsel: She actually can, Your Honor. If I may, when
you write a contemporaneous document, like
a diary, basically saying, “Today --
The court: [Y]ou’re overruled. Do not explain evidence
to me, [counsel]…I really don’t like when you
do that. Do you do that to everybody or
is that just something – you somehow
think that I’m stupid? [Counsel], I don’t
need you to explain evidentiary rules to
me. I have just said my ruling. It is not
admissible.
Id. at 268-69 (emphasis added).
The court: You cannot sit here and argue with me and
try to somehow school me on evidentiary
issues.
Counsel: I’m not trying to school you.
The court: Yes, you are.
Counsel: That’s your own insecurity. That’s –
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The court: [Counsel.] You’re very – disrespectful to this
court.
Id. at 292.
The most troubling excerpt came from the aforementioned testimony
about the custody exchange at the police station. See generally id at 306-
22. Mother claimed that she only asked the officer at the station to speak to
the Child out of concern for the Child’s well-being, but she maintained the
officer did not subject the Child to formal investigatory interview. Id. at 313.
The court: What do you [(Mother)] think they do,
ma’am? You are bringing a crying child to
them. They’re not there to say, “Oh, here,
have a lollipop and have a balloon.” At that
point, [their training is] kicking in, “this
parent obviously thinks something bad
happened.” They must, at that point –
they’re under a mandate to investigate, and
they interviewed her. They—
Counsel: No, they can – […] Your, Honor if you let her
finish –
The court: [Counsel,] that is not what police do. You
don’t run –
Counsel: Well, I’m so glad you were there and knew
what happened.
[…]
The court: Please, you can stop speaking right now. I’m
speaking.
Counsel: You’re making a lot of assumptions –
[…]
The court: Let’s move on.
Counsel: No, I’d like my client [(Mother)] to explain,
for the record, exactly what did happen and
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when the child spoke to an officer [during the
custody exchange], so that it’s clear, and so
that Your Honor—
The court: [Counsel], she had the child interviewed by
a police officer.
Counsel: --no, she didn’t.
The court: [Counsel,] you are not going to ever do that
again.
Counsel: She didn’t, Your Honor.
The court: All right. Can you [(the judicial staff)] get
the sheriff because I – I’m not having this in
my courtroom? You literally don’t know
when to stop, do you?
Counsel: What have I done, Your Honor?
The court: What do you mean, what have you done?
You’re—
Counsel: I’m trying to—
The court: --mocking me.
Counsel: --protect my client.
The court: You’re mocking me.
Counsel: You’re slapping your hands at me like I’m a
child.
The court: I am trying to conduct a hearing in the child’s
best interest. I am telling you—
Counsel: I know you’re trying that.
[…]
The court: […]I told you to move on to the next issue.
You told me no. You told me you were going
to go ahead and ask her all the questions to
say –
Counsel: I didn’t say that.
[…]
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The court: You told me you were not doing that. You
were going to – were going to ask her-
Counsel: I didn’t say I’m not –
The court: […] Now, apparently, somehow, now you’re
saying, “Oh, no, no, no, no, I didn’t say that,”
but, [counsel], don’t you dare call me a liar.
The record reflects itself.
[…]
The court: You can continue, but I’m telling you, one
more, and you are in contempt. I have – I’m
[not] doing this anymore, [counsel]. This is
not happening. You have literally, at this
point, gotten to the point where you think
you can have that attitude with this Court.
That is not what you’re going to do.
Counsel: That’s not true, Your Honor.
The court: No, I make a ruling and apparently you want
to sit here and educate me on what I’m doing
wrong. Move on.
Id. at 315-18.
In addition to the exchanges between the trial court and counsel,
Mother cites the court’s remarks made directly to her. The court made pointed
comments, evidently because the court suspected Mother’s testimony was not
truthful:
The court: This is a two-way street that neither one of
these parents is understanding. You’re
putting this kid in the middle. You’re putting
her in the middle of whatever this tension is
of why the two of you don’t understand it’s
not about you and it’s not about you.
Id. at 305.
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The court: Ma’am, you took your child, who was crying,
to go be interviewed by a police officer.
There was nothing to look at and say she had
injuries, something where, in fact, we would
say “Oh, my gosh, you should do that.”
She’s merely crying, and your first response
is, “I had to make sure I got evidence in case
there was something wrong, that dad did
something in his custodial time.” That is what
you responded to me, in your own words,
trying to say it in such a way to make it sound
like you’re mom of the year.
You’re not mom of the year when you run to
a police officer and subject a child to a – and
– and who’s already crying.
Id. at 309-10 (emphasis added).
The court: So, you guys are playing games, withholding
your child, as if she’s a puppy.
Id. at 327.
The court: So, don’t sit here and try to pull the wool over
my eyes.
[…]
Well – again, that’s what you’re saying, and
I am finding it not to be truthful. […] Based
on all of your testimony in front of [the prior
judge], you were not to relocate with the
child, and you were to be partial parent only.
And you didn’t like it, so you went and you
wanted to go ahead and get a different ruling
in a different [jurisdiction].
Id. at 422-23.
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After the trial court announced its intention to award Father primary
physical and sole legal custody, Mother was naturally upset and informed the
court she would appeal. See id. at 435.
Mother: This man has put this child through hel[l] and
you’re going to put this child in danger. And
it won’t be until something happens that
nobody can fix –
The court: Make sure the record is on because mom has
just made a threat to the court.
[…]
The court: You believe that you know better than
everybody. You believe that you are better
than what [the previous trial judge] decided.
You decided to circumvent by running to
Virginia to try to get every order possibly
against what [the previous trial judge] did.
[…]
You believe you know better. You believe
that our analysis means nothing, that you
are going to be the ultimate factfinder and
you’re going…to find a way to keep that child
in Virginia, away from [F]ather.
Mother: I believe I’ve done all I can to protect my
child. That’s what I believe, Your Honor.
The court: Well, then, you’re even giving me stronger
evidence of why I know for a fact you cannot
have primary custody. And I’m not sure
what kind of partial custody you can have.
[…].
Id. at 436-38.
What these excerpts reveal is a regrettable display of a trial court losing
patience with an attorney’s unbecoming behavior and with a parent, who it
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suspected was not being forthright. We remind counsel and the trial court of
their duties under the Code of Civility:
2. A lawyer should speak and write in a civil and respectful
manner in all communications with the court, court
personnel, and other lawyers.
3. A lawyer should not engage in any conduct that
diminishes the dignity or decorum of the courtroom.
[…]
5. A lawyer should abstain from making disparaging
personal remarks or engaging in acrimonious speech or
conduct toward opposing counsel or any participants in the
legal process and shall treat everyone involved with fair
consideration.
[…]
11. A lawyer should be considerate of the time constraints
and pressures on the court in the court's effort to administer
justice and make every effort to comply with schedules set
by the court.
204 Pa.A.D.C. § 99.3(2), (3), (5), (11).
2. A judge should show respect, courtesy and patience to
the lawyers, parties and all participants in the legal process
by treating all with civility.
[…]
6. A judge should not employ hostile or demeaning words in
opinions or in written or oral communications with lawyers,
parties or witnesses.
[…]
10. A judge should allow the lawyers to present proper
arguments and to make a complete and accurate record.
204 Pa.A.D.C. § 99.2 (2), (6), (10).
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At the risk of debasing these proceedings any further, we remind
counsel and the trial court that two wrongs do not make a right. For instance,
a Comment to our Rules of Professional Conduct provide:
Comment: [4] The advocate’s function is to present
evidence and argument so that the cause may be decided
according to law. Refraining from abusive or obstreperous
conduct is a corollary of the advocate’s right to speak on
behalf of litigants. A lawyer may stand firm against
abuse by a judge but should avoid reciprocation; the
judge’s default is no justification for similar
dereliction by an advocate. An advocate can present the
cause, protect the record for subsequent review and
preserve professional integrity by patient firmness no less
effectively than by belligerence or theatrics.
Rules of Professional Conduct 3.5 (“Impartiality and Decorum of the Tribunal)
– Comment 4.
Regarding the trial court’s comments to Mother, we recognize that the
presiding trial judge views and assesses the witnesses first-hand; ascertaining
witness credibility is directly within a trial court’s purview. See S.T., 192 A.3d
at 1160. But while judges are enabled to find a witness’s testimony to be
misleading or even a downright lie, such deceit does not excuse judges from
their obligation to be “patient, dignified, and courteous” to litigants, witnesses,
and lawyers. See Code of Judicial Conduct Rule 2.8(B). Time constraints are
not an excuse either:
Comment: [1] The duty to hear all proceedings with
patience and courtesy is not inconsistent with the duty
imposed in Rule 2.5 to dispose promptly of the business of
the court. Judges can be efficient and businesslike while
being patient and deliberate.
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Code of Judicial Conduct Rule 2.8 – Comment 1.
We caution the trial court to heed the warning previously given in A.N.P.
and in Commonwealth v. Smith, 69 A.3d 259 (Pa. Super. 2013):
Those who look to our courts to invoke a particular right,
even if incorrectly, should be met with patience, and with
fidelity to the procedures that our law requires, not with
intemperance. This fundamental precept derives not only
from the [Code] of Judicial Conduct, but also from our
society’s bedrock precept that the courts are forums of
integrity, justice, and equity.
A.N.P., 155 A.3d at 68 (quoting Smith, 69 A.3d at 267-68).
We are sympathetic that the nature of custody proceedings adds a
certain degree of pressure on all involved. The rights at stake are
fundamental. Childhood is finite, and thus the judicial decisions are to some
extent irrevocable. But these are reasons why the court and its officers must
rise to the occasion and resist from buckling under the weight of that pressure.
The question remains: did any of these remarks constitute a legal error or an
abuse of discretion?
We have held:
The appearance of bias or prejudice can be as damaging to
public confidence in the administration of justice as the
actual presence of bias or prejudice. However, simply
because a judge rules against a party does not establish bias
on the part of the judge against that party. Along the same
lines, a judge’s remark made during a hearing in
exasperation at a party may be characterized as
intemperate, but that remark alone does not establish bias
or partiality.
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Lewis, 234 A.3d at 722 (Pa. Super. 2020) (quoting Commonwealth v.
McCauley, 199 A.3d 947, 950-51 (Pa. Super. 2018) (further citation
omitted)); see also Interest of D.J.B., 230 A.3d 379, 386 (Pa. Super. 2020)
(holding that a judge’s remark contextualizing the juvenile’s delinquent act
within the Me Too Movement did not establish bias or partiality).
The judge’s remarks in the case were clearly made in exasperation, and
they may be rightly characterized as intemperate. Contrary to Mother’s
argument, the trial court also made disapproving comments to Father. See
e.g. N.T. (Day 2) at 327, 382. Ultimately, the trial court’s custody decision
was firmly rooted in testimony and evidence, not “partiality, prejudice, bias or
ill-will.” Lewis, supra. We reiterate that simply because a judge rules against
a party does not establish bias on the part of the judge against that party. Id.
It follows that simply because a judge finds a litigant’s testimony lacking in
credibility does not establish bias. Surely, Mother’s lack of credibility was a
significant aspect of the court’s analysis. But the court was free to make
credibility determinations, and such determinations were not manifestly
unreasonable in light of the record.
In sum, we conclude the trial court’s opinion did not circumvent Rule
1925(a); the trial judge’s courtroom procedure did not deprive Mother of a
meaningful opportunity to be heard; and while the comportment of the trial
judge and Mother’s counsel was less than professional, it does not rise to the
level of legal error or an abuse of discretion. Mother was afforded a fair
hearing. The court did not commit a due process violation.
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Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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