J.F.D. v. M.A.D.

J-A13039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
J.F.D. : IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
Vv.
M.A.D.
Appellee : No. 1852 EDA 2021
Appeal from the Order Entered August 10, 2021
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2007-26322
MEMORANDUM PER CURIAM: FILED SEPTEMBER 16, 2022
Appellant, J.F.D. (“Father”), appeals pro se from the order entered in
the Montgomery County Court of Common Pleas, which modified the custody
agreement between Father and Appellee, M.A.D. (“Mother”), as it relates to
their minor children, B.D. and P.D. (“Children”). We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case as follows:
[Father and Mother] have two daughters born during their
marriage: [B.D., born in 2006, and P.D., born in 2008]
(collectively referred to as “minor children”). The parties
were married on December 30, 2005, separated on March
20, 2012 and officially divorced on September 13, 2018.
The parties have been embroiled in litigation for over a
decade, covering most of the minor children’s entire lives.
The parties are routinely heard on numerous pleadings
including, but not limited to, Petitions to Modify, Petitions
for Contempt, Emergency Petitions and Petitions for
Protection from Abuse.
It is worth noting that the instant matter tracks closely with
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the protracted custody proceedings conducted before the
[trial court] in 2017. At that time, on August 31, 2017, the
[c]ourt issued comprehensive Findings of Fact consisting of
twenty-two (22) pages with an accompanying Order of
seventeen (17) Pages.
The 2017 Order represented a significant change from the
joint legal and the 50/50 physical custody schedule the
parties had been observing pursuant to a 2013 Order and
highlighted significant concerns with regard to Father’s
behavior. The aforementioned 2017 Order provided Mother
with sole legal custody and primary physical custody with
Father having alternate weekends (Friday through Sunday)
and one day during the week from 4-7 PM. Notably, the
[trial court] warned that Father’s continued efforts to isolate
and turn the children against their own Mother were as if he
was Carefully planting the “seeds of alienation.”
Notwithstanding Father’s behavior at that time to alienate
the children from Mother, the [trial court] noted the
following:
Father's role in the process [/.e. legal custody] can be
resumed at some point in the future provided that
there is demonstrated improvement on his ability to
co-parent without the constant need to prove Mother
wrong at each turn, imposing judgmental opinions
that are not productive to the process, and thriving on
producing conflict in the presence of third party
professionals; all of which are not in the best interest
of the children.
Father appealed the [trial court’s] August 31, 2017 Order
raising twelve (12) issues on appeal. On June 13, 2018, the
Superior Court of Pennsylvania affirmed the [trial court’s]
Order...
[T]he parties continued to heavily litigate, not only in
custody, but also in Equitable Distribution, Protection from
Abuse and other various motions and pleadings.
On February 8, 2019, following an incident that occurred at
the children’s school where Mother’s alcohol use was at
issue, the [trial court] ordered Mother to enroll in Soberlink,
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a remote alcohol monitoring program. The Order was to
ensure the safety of the children as it related to any
allegation made regarding Mother’s alcohol use and driving.
The Soberlink program requires that the user designate a
“concerned party,” such that any requested changes to the
program had to be signed off on by the concerned party.
The program further required that there be “involved
parties,” such that all test results by the user would notify
the involved parties. Mother designated her adult son,
Logan Visavati, as her “concerned party,” and Father and
the [Montgomery Child Advocacy Project attorney who had
been appointed as a guardian ad /item for the children] as
involved parties.
Thereafter, on or about March 2019, Mother and her
concerned party requested that the Soberlink positive BAC
threshold be raised from the default zero tolerance to a
positive BAC threshold setting of 0.020% (based on her
belief that the default zero setting was too sensitive and was
providing inaccurate test results). Soberlink accommodated
the request upon receiving the signed request forms from
both Mother and her concerned party. When the changes
were questioned by Father and his then attorney during the
2020 custody proceedings, in order to ensure full disclosure
and transparency, the [trial court] entered an Order on
February 24, 2020 detailing the aforementioned changes.
Father subsequently agreed to a custody Order on that
same date, February 24, 2020. The February 24, 2020
Order restored Father’s joint legal custody, added an
overnight on the Sunday of Father’s alternate weekends and
added an overnight visit during the week (an increase of 6
overnights a month overall). It also provided an avenue for
Father to improve his co-parenting relationship such that a
50/50 physical custody schedule could resume at the
beginning of the 2020-21 academic school year. Notably,
neither Father nor his legal counsel included in the Agreed
Order any concern or request to change the BAC threshold
back to a zero tolerance threshold.
Father did not make any effort to improve the co-parenting
relationship and instead, continued to chart his path of
contentious litigation, leading to his October 9, 2020
Emergency Petition to Modify—the basis for the instant
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appeal. As opposed to working towards a 50/50 schedule,
as anticipated, Father instead sought to effectively shut
Mother out completely; requesting “full legal and 100%
physical custody.”
Furthermore, in an ironic projection of his own faults and
issues, Father alleged that it was Mother who is alienating
the children from Father, that it was Mother who is creating
conflict at every turn, and that it was Mother who is placing
the children in “imminent danger.” Consistent with Father’s
theme for total and full control, he requested that the minor
children “have a break from Mother, [the] court, and its
court-ordered professionals.”
On June 8, 2020, upon review of an Emergency Petition filed
by Mother, the [trial court] discovered that the therapy for
the children, specifically directed in the 2017 Order, was not
occurring and proceeded to enter an Order directing therapy
to be resumed “forthwith.”
On October 19, 2020, upon learning from the minor
children’s therapist, Kristine Kershner, that neither of the
children were attending therapy as previously ordered in the
August 31, 2017 Order and June 8, 2020 Order, the [trial
court] proceeded to issue a Rule to Show Cause upon both
parties to show why the [c]Jourt should not find them in
contempt.
After Father filed his Emergency Petition to Modify on
October 9, 2020, the parties appeared...for a Triage
Conference on December 11, 2020 and were then scheduled
for a two-day protracted hearing before the [trial court] on
February 2 and 3, 2021. Both Rule’s to Show Cause were
also consolidated with Father’s Emergency Petition to Modify
for the two day protracted hearing.
Notably, the Scheduling order...directed that “[o|nly
relevant evidence since the 2/24/20 Agreed Order shall be
admitted into the trial.” Despite the Order limiting the
parties to relevant evidence post February 24, 2020, Father
proceeded to submit proposed exhibits numbering close to
1,000 pages in the [c]Jourt’s “drop box.”
The first day of hearings began on February 3, 2021. The
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first half of the first day of testimony was directed to the
children’s therapist Kristine Kershner. In general, the
therapist testified that the children were initially going to the
scheduled appointments, but as soon as the alternating
weekly summer schedule started in June with Father, they
began to refuse attendance and Father did not bring them
in for sessions. Ms. Kershner clarified that the children’s
refusal to attend was due to their belief that they did not
need to attend therapy anymore and that they “no longer
trusted the therapist.” Additionally, Ms. Kershner testified
to Exhibits “M-1” through “M-3” and conveyed the following:
[P.D.] began re-attending consistently on June 5,
2020, upon order of the court. At that time, increased
visitation began to occur with her father, with [P.D. ]
and her sister reportedly spending alternate weeks
with her father. During this time, there was notable
clinical change in [P.D.] She became increasingly
resistant to attend therapy, stating that she no longer
wanted to attend because therapy was causing her a
great deal of stress. During [three sessions] she
indicates that she wants to stop therapy. When asked
to explain her reasons, she shares each time that
therapy is very stressful because it is causing her
parents to argue more. She states her father does
not want her to attend therapy and her mother
does, as a result they fight... In addition to this
increased resistance to attending therapy, [P.D.] also
began to exhibit an increase in negative attitude and
behavior toward her mother. This was concerning, as
[P.D.] had been working very hard to improve her
relationship and communication with her mother prior
to this. This had been a focus of her therapy, at her
request...
When it was Father’s turn to elicit testimony, Father chose
to spend much of his time questioning the therapist about
the format of the therapy sessions and_ alleged
communication between himself and the therapist. ...Father
continues to view litigation and accompanying therapy as a
means to persuade the court and treating professionals that
he is “the end all, be all” for the children’s well-being...[.]
J-A13039-22
Father has steadfastly, if not stubbornly, maintained that
pattern of behavior wherein he believes himself more
capable of handling issues for the children despite what any
court, therapist, or doctor provides. Just as Father exhibited
his sense of entitlement and arrogance before Dr. Bellettirie
and Dr. Cooke in the 2017 proceedings, Father has since
continued to do so with new treating professionals.
Dr. Donna Tonrey was appointed to provide co-parenting
therapy for the parties in order to improve their co-
parenting relationship on August 9, 2019 after a succession
of several other notable mental health professionals in the
region. In her letter report dated December 5, 2019 [she
stated |:
After the overall experience, and in particular the last
session with [Father] on November 1, 2019, I do not
believe that any amount of therapy or therapeutic
interventions will make a difference with [Father]
cooperating with co-parenting. In my experience of
working with [Father] and [Mother], [Father] did not
demonstrate a regard for the opinion, viewpoint, or
authority of others involved in resolving this situation.
From my experience in these sessions, I am not
confident that [Father] was intent on_ taking
responsibility for the impact that his words and actions
have on effective co-parenting. I do know both
[Father] and [Mother] contribute to the situation,
however, [Mother] does appear to have a willingness
to take responsibility for the impact her words and
actions have on co-parenting.
Father has made it clear that any professional who disagrees
with his perspective will either be bullied to the point of
quitting, be fired, replaced, or can no longer be trusted.
When it was Father’s turn to testify following Ms. Kershner’s
testimony, considerable time was expended while Father
went through the alleged missed Soberlink tests[,] walking
through each month on Father’s self-created Calendar
Exhibit, and providing Father ample time to give his version
of Mother’s “missed tests.”
J-A13039-22
Following the first day of testimony, Father continued his
litigation strategy to wear down the court and opposing
counsel with the additional filings of pleadings including a
twenty-nine (29) page Motion in Limine (447 pages
including attachments) and a£_ sixty-eight (68) page
“Statement in Lieu of Testimony” (374 pages including
attachments). In both pleadings, Father sought to introduce
essentially a full history of his version of the parties’ lives
both prior to the Agreed Order of February 24, 2020 and
after. Specifically, Father attempted to use his Motion in
Limine to introduce allegations of Mother’s alcohol use prior
to the Agreed Order of February 24, 2020; and his
“Statement in Lieu of Testimony” as an effort to put
evidence into the record that he failed to testify about during
the hearing.
The [trial court] scheduled the parties for a second day of
testimony on March 15, 2021, consolidating Father’s Motion
in Limine. Following argument on the Motion in Limine, the
[trial court] took the Motion under advisement and Father
was then directed to finish his direct testimony. Instead,
Father opted to use the time set aside for his direct to argue
with the [c]ourt over the validity of admitting his voluminous
“Statement in Lieu of Testimony.” Having cited no legal
authority upon which to enter such a statement into the
record, the [trial court] denied Father’s request.
After some further redirection, Father finally resumed his
direct testimony. During his direct testimony Father
repeatedly testified that he is the minor children’s “first line
of defense” and that he [did not] feel it was necessary to
reach out to the professionals when he credits himself as
someone who can handle it on his own. As indicated in the
[trial court’s] August 31, 2021 Findings, Father showed a
complete unwillingness to support therapy for children. On
the contrary, he encouraged them not to participate,
refused to transport them to scheduled therapy
appointments during his custodial time and, worst of all,
shared the contents of progress letters the therapists had
provided to the [c]ourt with the children. By sharing the
contents of the therapist’s letters, a self-serving and
destructive act, Father successfully undermined any rapport
that the therapists worked to build with the children, all
while convincing the children, over and over again, that the
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therapists cannot be trusted.
Father also remains oblivious that some of his conduct
strains the relationship between the two minor children....
K K K
By the conclusion of the second scheduled day of testimony,
Father had effectively been given one and a half days to
testify, through both direct and cross examination.
Having still not heard any testimony from Mother, the [trial
court] scheduled a third day of testimony on May 17, 2021.
In addition, the [trial court] granted, in part, Father’s Motion
in Limine such that Father could’ present limited
testimony/evidence concerning Mother’s alleged substance
abuse from January 1, 2019 to date.... The [trial court] also
granted Father’s request to have a representative from
Soberlink testify and for the representative to provide [the
trial court] with the entire file that Soberlink maintained for
the parties[‘] matter.
Recognizing the concurrent emotional and additional
behavioral issues that the children were experiencing
throughout this litigation, and the testimony from Ms.
Kershner that it was not realistic for her to continue, the
[trial court] directed that the children begin therapy with Dr.
Heather Green on March 22, 2021....
The [trial court] also entered a separate six-page Order on
March 22, 2021 appointing additional mental health
professionals to treat specific behavioral issues for each
child as the parties had been paralyzed by indecision on the
selection of professionals for many months.
Before the third day of testimony began, Father filed yet
another Motion—a Motion for Reconsideration of the Motion
in Limine—which was consolidated with the hearing on May
17, 2021.
Mother finally had her opportunity to testify on May 17,
2021. In sum, Mother testified to Father’s refusal to follow
court orders and how he allows the children to do what “they
believe is right” as opposed to what a court order says.
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Mother stated that it was her impression that Father instilled
in the children that they have the choice do to what they
want to do, instead of what Mother, the court, or any
treating professional may tell them. Father has gone to
extensive effort to convince the children that they do not
have to do what they are told so long as they “do what’s
right.” As further evidence of Father’s disregard of Mother,
the [trial c]ourt, and the treating professionals, on the
February 23, 2021 CHOP Intake Questionnaire for [B.D.],
Father lied in reporting that documentation of the child’s
legal custody arrangements “[did] not apply.”
In contrast to Father’s attitude toward the treating
professionals, Mother testified that she has been working
with therapists on how to better parent and what to do when
the children become defiant and purport to be in charge.
Finally, Mother provided her own Exhibit regarding the
alleged missed Soberlink tests, with accompanying emails
and supporting documentation, and testified that the
alleged missed tests directly correlated to dates when the
children were in Father’s custody or were only missed by
minutes (to which she followed up with a compliant test).
Mother showed that she had not failed any Soberlink tests
since March 1, 2020, that the children are obsessed with the
testing, and asserted that further use of the Soberlink
device would continue to be destructive and unproductive.
At the conclusion of the third day, the [trial court] scheduled
a fourth day of testimony to enable the representative from
Soberlink to testify on June 8, 2021.
On June 7, 2021 (one day before the fourth and final day of
testimony), in typical fashion to remove anyone who
disagrees with him, Father filed a “Petition for Special
Declarative Relief and to Disqualify the Honorable Daniel J.
Clifford.” Father alleged that the [trial judge] was [not]
impartial and should be considered a material witness to the
parties’ case due to the [trial judge’s] remarks that the
[c]ourt was of the impression that the parties had entered
into an agreement following the BAC threshold change in
Mother’s Soberlink program. Notwithstanding Father’s
efforts to delay the conclusion of the proceedings, the June
8, 2021 date to allow the Soberlink representative to testify
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remained as scheduled and both Father and Mother's
counsel had ample opportunity to ask questions.
As ordered, Soberlink also provided [the trial court] and the
parties with their complete file....
Despite Father’s fishing expedition to find fault in Mother’s
Soberlink tests, three things were notable from the
testimony of the Soberlink representative: (1) The
representative testified that while he recognized that
tampering does happen from time to time, that has not
happened in this case; (2) Soberlink can identify and
evaluate a series of positive tests to detect if the results
have been compromised, but looking at the data, nothing
appeared wrong with the results; (3) on average, a
Soberlink client would utilize the device for four months.
Mother had been using the Soberlink device for over two
years, an extremely uncommon time period for any parent
in a custody case according to the Soberlink representative.
At the conclusion of the Soberlink representative’s
testimony, Father and Mother’s counsel were given an
opportunity to present closing argument and directed to
submit their own proposed findings with regard to the
custody factors in Pa.C.S.[A.] § 5328(a) by June 23, 2021.
The [trial court] made arrangements for the child interviews
to occur the next day, June 9, 2021, while the children were
at school, in a neutral setting, via Zoom. The parties were
directed to present areas of inquiry to address with the
children to Chambers, in advance, to enable their
participation in the interviews.
A complete review of the children’s interviews was contained
in the August 9, 2021 Findings of Fact. The children’s
preference during the interview was not “well-reasoned.”
The children’s behavior could best be described as a
desperate effort to satisfy their Father’s “agenda,” excluding
Mother and placing him as the martyr for the family’s issues
and concerns. As a result, the [trial court] placed reduced
weight on the children’s testimony, especially in light of the
inescapable alienation at play.
On June 11, 2021, the [trial court] denied Father’s Motion
for Reconsideration, filed on May 5, 2021. There was no
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need for additional testimony as Father was provided with
ample time to present his case within the four days of
hearings and, furthermore, he was given the opportunity to
make closing argument and submit written Findings of Fact.
Lastly, having no basis in which the [trial judge] would be
called as a “witness” in the matter, and thus lacking any
foundation, Father’s Petition for Declarative Relief and to
Disqualify the Honorable Daniel J. Clifford was denied on
June 16, 2021.
Within a month after the record closed, and before the [trial
court] could issue [its] August 9, 2021 Order and
accompanying Findings of Fact, Father filed an Emergency
Petition to Modify on July 6, 2021 and an Emergency Petition
for Special Relief on July 22, 2021, repeating nearly identical
allegations as had just been testified to during the four (4)
days of testimony...
(Trial Court Opinion, 10/12/21, at 1-17) (footnotes, internal citations, and
some quotation marks omitted; emphasis in original).
By order dated August 9, 2021 (and filed August 10, 2021), the trial
court issued a custody order granting Mother sole legal and primary physical
custody of Children. The court granted Father partial physical custody
consisting of every other weekend and, on the Tuesday following and Thursday
preceding Mother’s weekend, custody from after school through 7:00 PM. On
September 9, 2021, Father timely filed a notice of appeal and a
contemporaneous concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(a)(2)(i).
Father raises the following issues for our review:
I. Did the trial court err as a matter of law and/or committed
an abuse of discretion by failing to fulfill its obligation and
responsibility to create a complete record in a custody case
so that a comprehensive review can be conducted on appeal
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as follows:
a. By refusing to allow Father to submit into evidence
the complete history of Mother’s alcohol abuse so as
to understand the severity of her problem?
b. By refusing to allow Father to submit evidence and
testimony he sought to introduce that was relevant to
the issue of custody and not duplicative, including
evidence pertaining to Mother’s substance, physical
and emotional abuses of the children, from May 24,
2017 to February 24, 2020?
c. By refusing to allow Father to submit evidence and
testimony pertaining to 14 of the 16 custody factors,
from February 24, 2020 to present, because Father's
time for testimony and evidence expired according to
the [c]ourt’s artificial time clock?
d. If time was truly of the essence, then the [t]rial
[c]jourt erred when it precluded Father from
submitting a written statement in lieu of oral
testimony that would have been subject to cross-
examination because the [trial [c]ourt’s
manufactured time restraints effectively rendered
Father an _ unavailable witness pursuant to
Pennsylvania Rule of Evidence 804?
e. By limiting Father’s questioning of the Soberlink
witness and by refusing to admit both parties’
communication with Soberlink, which would have
disclosed Mother’s frequent attempts to circumvent
Soberlink procedures and deceive the [c]ourt?
f. By limiting Father from testifying on redirect after
being cross-examined by Mother’s counsel and
thereby, blocking Father’s right to rehabilitate his
testimony?
g. By repeatedly stating on the record, that he “has
presided over numerous protracted proceedings
involving the parties over the past 5 years including,
but not limited to, custody and PFA’s (as recently as
2020 and 2019 respectively) and, as a result, is
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extremely aware of the cumulative history of the
case,” which position essentially insulates the [t]rial
Judge from appellate review because what is in the
[t]rial Judge’s memory is not part of the record, and
as a result, the [t]rial [cjourt excluded relevant
evidence occurring over more than four (4) years of
the children’s lives?
II. Did the trial court err as a matter of law and/or
committed an abuse of discretion in relying on an ex parte
letter submitted to the [c]ourt by the children’s therapist,
Dr. Green, without giving Father the opportunity to cross-
examine the therapist and/or even have access to the
letter?
III. Did the trial court err as a matter of law and/or
committed an abuse of discretion in denying summarily
Father’s Petition for Declaratory Relief and to Disqualify the
[t]rial Judge and that was docketed on June 7, 2021,
especially when the record does not support the conclusion
there was an agreement regarding Mother’s unilateral
alteration to the Soberlink Device threshold?
IV. Did the trial court err as a matter of law and committed
an abuse of discretion when it terminated Mother’s
obligation to continue to use the Soberlink Device, especially
given the evidence of record that Mother unilaterally
increased the threshold for alcohol detection making her
negative tests meaningless and in so doing, ignored the
children’s safety?
V. Did the [t]rial [c]ourt err as a matter of law and/or
committed an abuse of discretion when it failed to give
considerable weight to Mother’s alcohol abuse and thereby
avoided analyzing factors that should have been given
weighted consideration pursuant to 23 Pa.C.S.A. § 5328(a)?
VI. Did the trial court err as a matter of law and/or
committed an abuse of discretion in granting Mother the sole
discretion to name a third party for the children to contact
regarding Mother’s drinking and driving, especially when the
record was clear that Mother would name her adult son, and
that Father had legitimate concerns about the adult son’s
ability to manage Mother’s drinking?
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VII. Did the trial court err as a matter of law and/or
committed an abuse of discretion in not asking the children
critically relevant questions provided by Father to the
[c]ourt as per its June 8, 2021 request, and in dismissing
the credible concerns and reasonable preferences of the
children?
VIII. Did the trial court err as a matter of law and/or
committed an abuse of discretion in making credibility
determinations for Mother and Father that are not supported
by the record and which appear to be a blatant attempt by
the [t]rial [c]ourt to render its decision impervious to review
on the issue of credibility alone?
IX. Did the trial court err as a matter of law and/or
committed an abuse of discretion in making numerous
Findings of Fact that are not supported by the record,
including but not limited to the finding that Father allegedly
engaged in conduct to alienate the children from Mother
despite the abundance of evidence in the record that the
children are estranged from Mother and want to reside with
Father as a result of Mother’s abuse of the children and her
inability to function as a parent due to her alcohol abuse?
X. Did the trial court err as a matter of law and/or committed
an abuse of discretion in denying Father’s Motion for
Reconsideration despite the [cJourt’s May 11, 2021 Order to
hear arguments for the same?
XI. Did the trial court err as a matter of law and/or
committed an abuse of discretion in finding Father in
contempt of the Orders dated June 8, 2020, the Agreed
Order of February 24, 2020 and section 5(f) of the March
22, 2021 [order], especially since Mother does not have
clean hands with respect to the Orders of Custody and
participation in therapy?
XII. Did the trial court err as a matter of law and/or
committed an abuse of discretion in rendering a decision
that is based on its ill will and bias towards Father, which is
palpable in the record, rather than what is in the best
interests of the children?
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XIII. Did the trial court err as a matter of law and/or
committed an abuse of discretion in granting Mother sole
legal custody of the children when the record is replete with
incidents of Mother’s poor judgment regarding the children,
including but not limited to those occasions where Mother
elected to consume alcohol to excess when with the children
and to endanger the children’s safety by driving a vehicle
with the children inside after imbibing alcohol?
(Father's Brief at 10-20) (issues renumbered).
In reviewing a child custody order:
[O]jur scope is of the broadest type and our standard is
abuse of discretion. This Court 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, this Court must defer
to the trial judge who presided over the proceedings and
thus viewed 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.
S.J.S. v. M.J.S,, 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation
omitted). This Court has consistently held:
[T]he discretion that a trial court employs in custody
matters should be accorded the utmost respect, given the
special nature 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) (internal citation
omitted). In addition:
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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) (internal
citations omitted).
“with any child custody case, the paramount concern is the best
interests of the child. This standard requires a case-by-case assessment of
all the factors that may legitimately affect the physical, intellectual, moral and
spiritual well-being of the child.” M.J.M. v. M.L.G., 63 A.3d 331, 334
(Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013) (quoting
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)). Section 5328(a) sets
forth the best interest factors that the trial court must consider in awarding
custody:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court
shall determine the best interest of the child by considering
all relevant factors, giving weighted consideration to those
factors which affect the safety of the child, including the
following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
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J-A13039-22
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1)
and (2) (relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
-17-
J-A13039-22
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a)(1)-(16).
After a thorough review of the certified record, the briefs of the parties,
the relevant law, and the well-reasoned opinion of the Honorable Daniel J.
Clifford, we conclude Father’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions presented.
(See Trial Court Opinion at 20-54) (finding: (1) Father had ample opportunity
to present his case-in-chief regarding custody modification and was
appropriately prohibited from re-litigating matters not presently before court,
and prohibited from presenting cumulative evidence; (2) Father waived
challenge to admissibility of therapist letters by not raising issue before trial
court; moreover, court recognized that Father’s actions in inappropriately
sharing court records with Children necessitated sealing of therapist letter
report; (3) Father did not raise substantial doubt about trial judge’s ability to
preside impartially; (4) court did not abuse its discretion in terminating
Mother’s obligation to use Soberlink alcohol monitoring device; (5) trial court
considered and weighed all custody factors, including parties’ history of
alcohol and drug use; (6) court did not abuse its discretion in giving Mother
opportunity to name third party for Children to contact if they are concerned
-18-
J-A13039-22
about her alcohol consumption; (7) court did not err in placing reduced weight
on Children’s preference given Father’s routine alienating behavior; court
noted that Children’s in camera testimony exhibited desperate attempt to
satisfy and please Father and forward his agenda; (8) court’s credibility
decisions were within its discretion; (9) trial court’s findings of fact, including
finding that Father engaged in alienating behavior, were supported by
testimony from treating professionals; (10) order denying reconsideration was
not reviewable on appeal; (11) Father engaged in contemptuous behavior
volitionally and with wrongful intent, especially with respect to his interference
with Children’s therapy; (12) trial court based its decision on best interests of
Children, not on ill will and bias toward Father; (13) court did not err in
granting Mother sole legal custody because Father has demonstrated
continuous interference with emotional and physical welfare of Children).
Accordingly, we affirm based on the trial court’s opinion, and direct the parties
to attach a copy of the trial court’s October 12, 2021 opinion to future filings
involving this appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Es
Prothonotary
Date: 9/16/2022
-19-
Circulated 09/07/2022 02:20 PM
2007-26322-0603 Opinion, Page
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CTVIL ACTION - LAW
SF, DEER t NO. 2007-26322
Plaintiff : :
v,
‘ 1852 EDA 2021
M@QaEEES 4. DEE :
Defendant :
OPINION |
Clifford, Daniel J. October 12, 202%
Appellant, Ml F, DWIJR files this eppeal from the Order entered by the undersigned in
this child custody matter dated August 10, 2021.
FACTUAL AND PROCEDURAL HISTORY
Appellant is Jame F. Dag (“Father”) and Appellee is Mali A. D@HR (“Mother”).
The parties have two daughters born during their marriage: Bags Dag (oR: EF 2.006} and
Di DR (DOR: HRM2008) (collectively referred te as “minor children”). The parties were
married on December 30, 2005, separated on March 20, 2012 and officially divorced an
September 13, 2018.
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Roprad145076 Fee30,00 Opiniot
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2007-26322-0663 Cpinion, Page
The parties have been embroiled in litigation for over a decade, covering most of the
minor children’s entire lives.! The parties ate routinely heard on numerous pleadings including,
but not limited to, Petitions to Modify, Petitions for Contempt, Emergency Petitions end
Petitions for Protection from Abuse.”
kt is worth noting that the instant matter tracks closely with the protracted custody
proceedings conducted before the undersigned in 2017. At that time, on August 31, 2017, the
Court issued comprehensive Findings of Fact consisting of twenty-two (22) pages with an
accompanying Order of seventeen (17) Pages.’
The 2017 Order represented a significant change from joint legal and the 50/50 physical
custody schedule the parties had been observing pursuant to a 2013 Order and highlighted
significant concerns with regard to Father's behavior, The aforementioned 2017’Order provided
Mother with sole legal custody and primary physical custedy with Father having alternate
weekends (Friday through Sunday) and one day during the week from 4-7 PM. Notably, the
i Inthe case of PBB, Jitigation has in fact spanned her entire life.
2 AaB noted in Footnote 3 of the undersigned’s August 9, 2021 Findings of Fact:
“To date, there are now a total of 367 docket entries (not Including PFA’S). The undersigned has presided
over most of the Court proneedings between the parties since being assigned to the case in January 2016:
sight and one half (84) days of protracted custody hearings Guchiding two sets of two individual fr
comera interviews}, tyo (2) daya of protracted support bearings, four (4) PFA hearings, proceedings -
relating to equitable distribution and contengpt issues and a dey and a half of equitable distabution hearings
{piua numerous Shortt List proceedings related to all of the foregoing issues}. The two (2) days of support
proceedings in 2016 before the undersigned represented the third round of protracted support hearings over
the previous three (3} years Chere were a total of four (4) days of protracted hearings before two other
Family Court Judges). Father haa appealed mumerous Order's to the Supertor Court of Pennsyivania
including 4 support appeal in 2015, a custody appeal in 2017, an equitable distribution appeal im 2018 aad a
PFA appeal in 2014. In any event, the undersigned has expended the equivalent of at least thirteen (13}
days of protragted proceedings, plus countless other proceedings, with these parties in the past five and
ane-half (5 \4) years.”
1 The Findings of Fact issued on August 1), 2021, the subject of this appeal, consisted of twenty-nine (29) pages
with an accompanying Order of sighteen (18) pages.
4.
2007-26322-0603 Opinion, Page
undersigned warned that Father’s continued cfforts to isolate and turn the children against their
own Mother were as if he was carefully planting the “seads of alienation.“4
Notwithstanding Father’s behavior at that time fo alienate the children from Mother, the
undersigned noted the following:
“Father's role in the process fi.e. legal custody] can be resumed at some point in
the future provided that there is demonstrated improvement on his ability te co-
parent without the constant need to prove Mother wrong at each turn, imposing
judgmental opinions that are not productive to. the process, and thriving on
Producing conflict in the presence of third party professionals; all of which are
not in the best interest of the children.”
See August 31,2017 Order, Footnote 1,
Father appealed the undersigned’s Angust 31, 2017 Order raising twelve (12) issues on
appeal.* On June 13, 2018, the Superior Court of Pennsylvania affirmed the undersigned’s Order
hoiding that the undersigned’s “opinion and findings of fact provide a careful and detailed
examination of the evidence and a comprehensive analysis of each of the section 5328(8) custady
factors and each of Father's claim on appeal.”° Specifically, the Superior Court found that the
undersigned’s finding that Father's “pattern of conduct fives] symptomatic of parental
alienation,” was not without basis, and thus did not abuse its discretion? The Superior Court
also directed that the parties attach a copy of the uadersigned’s opinion in the event of further
proceedings.®
4 See August 31, 2017 Findings of Fact, Pa, 21.
+ Sea October 23, 2017 Concise Statement of Errors. Notably, some of the issues raised in Fathers 2017 Conalsea
Statement of Errors are almost identical to the errors raised in the instant appeal.
° See LED. v, MLALD,, Mo, 3200 BDA 2017, 2018 WI, 3045140 Ga. Super, June 13, 2018}.
7 See id. The Superior Court noted in their decision that multiple professionals, inclading Dr. Bellettiris and Be.
Gerald Cook, found Father to be extremely controling, arrogant, and exhthited narcissistic behaviors. The same
pattern of behavior continues with an array of new professionals in the current round of Utigation.
a See ld
3.
2007-26322-0003 Opinion, Page
Just as the Superior Court predicted that there would be future proceedings, the parties
continued te heavily litigate, not only in custody, but also in Equitable Distribution, Protection
from Abuse and other various motions and pleadings?
Gn Febmary 8, 2019, following an incident that occurred at the children’s schoo] where
Mother’s alechol use was at issue, the undersigned ordered Mother to enroll in Soberlink, a
remote aleohal monitoring program!” The Order was entered to ensure the safety of the children
as it related to any allegation made regarding Mother’s alcohol use and driving. The Soberlink
program requires that the user designate a “concemed party,” such that any requested changes to
the program had to be signed off on by the concerned patty, The program further required that
there be “involved parties,” such that all test results by the user would notify the involved parties.
Mother designated her adult son, LA VERE, as her “concermed party,” and Father and the
MCAP attomey, as the designated “involved parties,"
Thereafter, on ot about March 2019, Mother and her concerned party requested that the
Soberlink positive BAC threshold be raised from the default zero tolerance to 2 positive BAC
threshold setting of 0.020% fbased on her belief that the zero default setting was too sensitive
and was providing inaccurate test results), Soberlink accommodated the request upon receiving
the signed request forms from both Mother and her concemed party, When the changes were
questioned by Father and his then attorney during the 2020 custody proceedings, in order to
* Notably absent from the eustody pleadings filed by Father is the widerelgned’s 2017 Opinion (as directed by
Superior Court},
10 See February 3, 2019 Order,
4 A volunteer attorney with the Montgomery Child Advocacy Project (MCAP was appointed as a GAL for the
children in the 2019 PFA matter. There bave been numerous GAL’s appointed in the approximate 15 PFA
filings over the years,
AL
2007-26322-0603 Opinion, Page
ensure full disclosure and transparency, the undersigned entered an Order on Pebruary 24, 2020
detailing the aforementioned changes.”
Father subsequently agreed to a custody Order on that same date, February 24, 2020. The
February 24, 2020 Order restored Father's joint legal custody, added an overnight on the Sunday
of Father's alternate weekends and added an overnight visit during the week (an ixtcrease of 6
ovetnights a month overalf). It also provided an avenue for Father to improve his co-parenting -
relationship such that a 50/50 physical custody schedule could resume at the beginning of the
2020-21 academic school year."* Notably, neither Father nor his legal counsel included in the
Agreed Order any concern or request to change the BAC threshold back to a zero tolerance
threshold, **
Father did not make any effort to improve the co-parenting relationship and instead,
continued te chart his path of contentious litigation, leading to his Octaber 9, 2020 Emergency
Petition to Modify—the basis for the instant appeal. As opposed to working towards a 50/50
schedule, as anticipated, Father instead sought to effectively shut Mother out completely;
requesting “full legal and 100% physical custody."
Furthermore, in an ironic projection of his own faults and issues, Father alleged that it
was Mother who is alienating the children from Father, that ft was Mother who is creating
conflict at every tum, and that it was Mother who is placing the children in “imminent danger”,!®
2 See February 24, 2026 Order.
See February 24, 2020 Agreed Order.
4 See id. This point is extremely significant to Father's appeal as much of Father's cutire focus in the 2071
proceedings was the Soberlink testing.
See Father’s October 9, 2020 Emergency Petition to Modify.
(8 See Fe.
-5-
2007-26322-0603 Opinion, Page
Consistent with Father's theme for total and full control, he requested ihat the minor children
“have a break from Mother, [the] court, and its court-ordered professionals,”"!”
On Tune 8, 2020, upon review of an Emergency Petition filed by Mother, the undersigned
discovered that the therapy for the children, specifically directed in the 2017 Order, was not
occurring and proceeded to enter an Order directing therapy to be resumed “forthwith.”"*
On October 19, 2620, upon learning from the miner children’s therapist, Kristine
Kershner, that neither of the children were attending therapy as previously ordered in the August
31, 2017 Order and June 8, 2020 Order, the undersigned proceeded to issue a Rule to Show
Cause upon both parties to show why the Court’ should not find them in contempt,!?
After Father filed his Emergency Petition to Modify on October 9, 2020, the parties
appeared before the Honorable Carolyn Cariuccio, the Administrative Judge of Family Court, for
a Triage Conference on December 11, 2020 and were then scheduled for a two-day protracted
hearing before the undersigned on February 2 and 3, 2021.7" Both Rule’s to Show Cause were
also consolidated with Father’s Emergency Petition to Modify for the two day protracted
hearing.”
7 See id. Aa indicated throughout this Opinion, Father routinely recognizes himself as the one and only individual
that can help and addres¢ the moinor children’s needs. Furthermore, despite his October 2020 Emergency
Petition alleging the children had of all these problema, Father was busy sidelining the therapy both children
were supposed to obtuin pursiant to the endersigned’s Count Orders,
18 See Jane 8, 2020 Order. The Order provided that the Court considered therapy fer the children to be essential,
given the history of the case, and further directed the parties to cooperate with the children’s therapy. Alsa, the
Order specifically cautioned as to the implementation of sanctions, pimsuant to 23 § 5323(g), should there be
non-compliance.
See Gctober 19, 2020 Rule to Show Cause.
7 See December 15, 2020 Onder
11 See January 15, 2021 Scheduling Order
2007-26322-0603 Opinion, Page
Notably, the Scheduling Order entered by Judge Carkuccio directed that “fojaly relevant
evidence since the 2/24/20 Agreed Order shail be admitted into the trial." Despite the Order
limiting the parties to relevant evidence post February 24, 2020, Father proceeded te submit
proposed exhibits numbering close to 1,000 pages in the Court’s “drop box”.
The first day of hearings began on February 3, 2021.77 The first half of the first day of
testimony was directed to the children’s therapist Kristine Kershner. Jn general, the therapist
testified that the children were initially ming to the scheduled appointmeats, but as soon as the
alternating weekly summer schedule started in June with Father, they began to refuse attendance
and Father did not bring them in for sessions.* Ms. Kershner clarified that the children’s refusal
fo attend was due to their belief that they did not need to attend therapy anymore and that they
“no longer trusted the therapist."** Additionally, Ms. Kershner testified to Exhibits “M-1"
shrough “Ht-3" and conveyed the following:
“... (PRR) began re-attending consistently on June 5, 2020, upon order of the
court, At that time, increased visitation began to accur with her father, with P@yp
and her sister reportedly spending alteroate weeks with her father. During this
time, there was notable clinical change in Pg¥Jm She became increasingly
resistant to attend therapy, stating that she no fonger wanted to attend because
therapy was causing her a great deal of stress. During session on 6/5/2020,
7/27/2020 and 8/13/2020 she indicates she watts fo stop therapy, When asked to
explain her reasons, she shares each time that therapy is very stressfint because it
is causing her parents ta argue more, She states her father does not want her to
attend therapy and her mother does, as a resnit they fight..In addition to this
increased resistance to attending therapy, Pag also began to exhibit an increase
in negative attitude and behavior toward her mother. This was concerning, as
Paige had been working very hard to improve her relationship and communication
with her mother prior to this. This had been a focus of her therapy, at her
request,.,” [Emphasis added]
See December 11, 2020 Scheduling Order.
“The first scheduled day for February 2, 2021 was continued due to the Courthouse closure.
See Pebeuary 3, 2021 NOT at Pgs, 14-33.
See fd, at 15-21.
2007-26322-0603 Opinion, Page
See Exhibit “M-2” of the certified record.
When it was Father's turn to elicit testimony, Father chose to spend much of his time
questioning the therapist about the format of the therapy sessions and alleged communication
between himself and the therapist° In a clear demonstration of how Father continues to view
litigation and accompanying therapy as a oieana to persuade the court and treating professionals
that he is “the end alt, be all” for the children’s well-being, he stated the following:
MR DIRARH Is it true that Paigp considers me to be the singular parent who
genuinely thinks, cares, reflects on her issues and endeavors io understand them
and to find ways for her to help soothe herself? [Emphasis added}
Ms. KERSHNER: She has never told me that.
MR. peel: Would you be supervised if she has said those things?
THE COURT: Therein lies the problem. Mark the tape please (to the Court
Reporter).
THE COURT: Mr. Dag@l if your children have these issues that you've just
stated, sexuality, bedwetting and eating, why in the world wouldn’t you be
pursuing them to have therapy with somebody even if it’s net [Kristine Kershner}
?
JHE COURT: You've never filed a Petition for either this therapist to be
replaced or to hire a new one as far as | know. Your petitions are all directed to 2
change of the overall schedule fer custody. They’re not pertaining to what the
children really need which is therapy. Why is that? Or are you just making these
things up that they have these issues?
MR. Tea: I'm not fabricating a single thing, Your Honor.
THE COURT; Allright. Then why wouldn’t you pursue them to have therapy?
Why would you sit by and just rest all of your chips in a petition to modify the
custodial schedule hoping that you'll get primary custody and then what?
Everything will be perfect and fine? There will be no problems?
46 Swe February 3, 2621 NOT at Pes. 47-105,
2007-26322-0603 Gpinion, Page
THE COURT: So I just want to make sure I understand your petition. Your
petition to madify custody is that we'll modify custody so that yon have full and
complete control, full legal custody, fill physical custody, and magically
everything will be better, end we wouldn’t need therapy; is that your testimony?
Is that your position?
MR. ae Remove “magically” and, yes, that is my position.
See February 3, 202] NOT at Pgs. 62; 66-69.
Father has steadfastly, if not stubbornly, maintained this pattern of behavior wherein he
believes himself more capable of handling issues for the children despite what any court,
therapist, or doctor provides. Just as Father exhibited his sense of entitlement and arrogance
before Dr. Bellettirie and Dr. Cooke in the 2017 proceedings, Father has since continued to de so
with new treating professionals,”
Dr. Donna Tonrey was appointed to provide co-parenting therapy for the parties in order
to improve their co-parenting relationsbip on August 9, 2319 after a succession of several other
notable mental health professionals in the region. In her letter report dated December 5, 2619
(entered to the record of the proceedings as Exhibit “C-6"):
“After the overall experience, and in particular the last session with James on
November 1, 2019, I do not believe that any amount of therapy or therapeutic
interventions will make a difference with Jsepgpcooperating with co-parenting, In
oly experience of working with Laigp and Magign, Japetp did not demonstrate a
regard for the opinion, viewpoint, or authority of others involved in cesolving this
Situation. Although J@@MQy wrote in October 16, 2019 sessions as if he had intent
on being effective at co-parenting, what ha demonstrated in November 1, 2019
session, ag well as prior sessions, was not in line with his written statement. From
ty experience in these sessions, [ ani not confident that was intent on
taking responsibly for the impact that his words and actions have on effective co-
parenting. I do know both Jggjiy and M@ijpige contribute to the situation,
however, Magee docs appear to have a willingness to take responsibility for the
impact her words and actions have on co-parenting.”
See Exhibit “C-6" of the certified record.
a7 See L.ED, v. MLA.D., No. 3200 BDA 2617, supra, at *2.
: . 0.
2007-26322-0603 Opinion, Page *
Father has made it clear that any professional wha disagrees with his perspective will
either be bullied to the point af quitting, be fired, replaced, ot can ne longer be trusted,
When it was Father's turn to testify following Ms. Kershner’s testimony, considerable
time was expended "WHild Father went ‘through the alleged missed Soberlink tests (walking
though each month on Father’s self-created Calendar Exhibit (ee Exhibit “F-2” of the certified
record}, and providing Father ample time to give his version of Mother’s “missed tests”.
Following the first day of testimony, Father continued his litigation strategy to wear
down the court and cpposing counsel with the additional filings of pleadings including a tweaty-
nine (29) page Motion in Limine (447 pages including attachments) and a sixty-eight (68) page
“Statement in Lieu of Testimony” (374 pages including attachments). In both pleadings, Father
sought to introduce essentially a fall history of his version of the parties’ lives both prior fo the
Agreed Order of February 24, 2020 and after. Specifically, Father attempted to use his Motion
in Limine to introduce allegations of Mother’s alcohol use prior to the Agreed Order of February
24, 2020; and use his “Statement in Lien of Testimony” as an effort to put evidence into the
record that he failed to testify about during the hearing.®°
The undersigned scheduled the parties for a second day of testimony on March 15, 2021,
consolidating Father’s Motion in Limine. Following argument on the Motion m Limine, the
undersigned took the Motion under advisement and Father was then directed to finish his direct
testimony.” Instead, Father opted to use the time set aside for his direct to argue with the Court
"8 See Exhibit “M27 list of professionals,
See February 3, 2021 NOT, supra, at Pgs, 121-240,
3 Gee Father's March 4, 2021 Motion in Linine; See Father's March 12, 202! Statement in Liew of Additional
Oral Testimony.
3. See March 15, 2021 NOT at Pg, 42.
2007-26322-0603 Gpinion, Page 1
over the validity of admitting his voluminous “Statement in Lieu of Testimony’"* Having cited
ne legal authority upon which te enter such a stafement into the record, the undersigned denied
Father’s request.*
After some further redirection, Father finally resumed his direct testimony. During his . .
direct testimony Father repeatedly testified that he is the minor children’s “first line of defense”
and that he didn’t feel it was necessary to reach out to the professionals when he credits himself
as someone who can handle it on his own?> As indicated in the undexsigned’s August 31, 2021
Findings, Father showed a complete unwillingness to support therapy for children, On the
contrary, he encouraged them not to participate, refused to transport them to scheduled therapy
appointments during iis custodial time and, worst of all, shared the contents of progress letters
the therapists had provided to the Court with the children2® By sharing the contents of the
therapist's letters, a self-serving and destructive act, Father suceessfully undermined any rapport
that the therapists worked te build with the children, ail the while convincing the children, ever
and over again, that the therapists cannot be trusted.
Father alse remains oblivious that some of his conduct strains the relationship between
the two minor children, av issue that Pgigp has admitted to the multiple therapists she has seen,
as well as to the undersigned. This was exhibited when he was asked the following on cross
exammation: .
COUNSEL: Did Baga receive any award or recognition from the school for her
pextormance’?
32 See Id. at Pes. 46-63; 70-71.
3 See fe at 57.
4 See id. at 71-115.
See fd. at 86.
6 See August 31, 202 Findings of Fact, Pactor 7; See atso Exhibits “M-1", “M-2", “M-3", and °C-14",
~Ti.
= eee —_——
2007-26322-0603 Opinion, Page 1
MR. Date: Not from the schaol but from me,
COUNSEL: What do you mean from you?
MR, ng. Ba lamented that she was not going to get recognition for all the
heard work that she put into that school year, and she reasonably expected that she
was going to receive recognition in front of ber entire class...And so I had an
award made that recognized and honored her for her achievement... didn’t want
COVID to he the singular reason why she doean’t get the kind of recagnition that
the schoo! was likely going te give our daughters. [emphasis added]
COUNSEL: Did Pat come to learn that you created an award aad ordered it for
Bae and did not do so -—T mean did ray come to learn that that came from you,
the award for Rae
MR. DRIP: 1 believe she dic, yes. Yeuh, I recall actually talking about it and
letting Pp know that ~ I let Pg know that 1 wanted to recognize what Ra
did, and I used this as 4 learning or a teaching moment for Pag@pthat ~ you know,
whose grades are not 2s close to Ryae's. .
THE CGURT:...was there nothing that you could come up with that might
provide some recognition to Pgghy whether or not she got twos or threes [for
grades]? Was there some other type of thing that you could come up with for her?
MR. : Your Honor, I always recognize Pal for her achievements
regardless of what they are.
THE COURT: But you didn’t at year end, school end, for her from the sounds of
it, or are we mistaken about that?
MR. Da: Na, you’re not mistaken, J didn’t provide or — yeah, ] didn’t come
up with an award for Pg@igy because Ray was not lamenting over the absence of
an award whereas Bgl was.
THE COURT: Why would that matter? If you’re giving one to one and not the
other, why would it matter? If anything, if one person's complaining about not
petting an award and the ofber ane isn’t, they both should not have gotten
something. ..
See March 15, 2021 NOT Pgs. 124-331.
-{2-
2007-26422.0602 Opinion, Page 1
Father failed to comprehend that he was prioritizing Bigs feelings over Tilt’ s ana, at
the same time, sending both children an incorrect message by “creating” a fake school award and
pretending to both that it was a real one,
By the conclusion of the second scheduled day of testimony, Father had effectively been
given one and a half days to testify, through both direct and cross examination,
Having still not heard any testimony from Mother, the undersigned scheduled a third day
of testimony on May 17, 2021, In addition, the undersigned granted, in part, Father’s Motion in
Limine such that Father could present Hmited testimony/evidence concerning Mother's alleged
syibstance abuse from January 1, 2019 to daie {expanding the February 24, 2020 Agreed Order
cutoff from the scheduling Order).*? The undersigned also granted Father’s request to haye a
representative from Soberlink testify and for the representative to provide Chambers with the
entire file that Soberlink maintained for the patties matter?®
Recognizing the concurrent emetional and additional behavioral issues that the children
were experiencing throughout this litigation, and the testimony from Ms. Kershner that it was not
realistic for her to continue, the undersigned directed that the children begin therapy with Dr.
Heather Green on March 22, 2021.99 The four page March 22, 2021 Order appointing Dr. Green
stated that she would not be replaced and alsa directed ber to provide a written letter to
Chambers regardins the status of therapy prior to May 3, 2021,
Sea March 22, 2021 Memorandum and Order.
“See March 18, 2021 Order. Father had previously attempted to admit into evidence documents and
communications that be had compiled and claimed it was rom Soberliak. However, giver the edits that Father
had made te the documents, the undersigned believed that it was prudent to obtain the entire “file directly from
Soberlink.
2 See March 22, 2021 Order.
"Al gee tek
-i3-
2007-26322-0603 Qninion, Page 1
The undersigned also entered a separate six page Order on March 22, 2021 appointing
additional mental bealth professionals fo treat specific behavioral issues for each child as the
parties had been paralyzed by indecision on the selection of professionals for many months, .
Before the third day of testimony began, Father filed yet another Motion—-a Motion for
Reconsideration of the Motion in Limine—which was consolidated with the hearing on May 17,
2021.
Mother finally had her opportunity to testify on May 17, 2021. In sum, Mother testified
fo Father's refusal to follow court orders and how he allows the children ta do what “they believe
ig right” as opposed to what a court order says! Mother stated that it was her impression that
Father institled in the children that they have the choice to do what they want to do, instead of
what Mother, the court, or any treating professional may tell them.*? Father has gone to
extensive effort to convince the children that they de not have fa do what they are told so long as
they “do what's right."? As further evidence of Father's disregard of Mother, the Court, and the
treating professionals, on the February 23, 2021 CHOP Intake Questionnaire for Bagi (admitted
to the record as Exhibit “M-9") Father lied in reporting that documentation of the child’s legal -
custody arrangements “[did] not apply."
In contrast to Father’s attitude toward the treating professionals, Mother testified that she
has been working with therapists on how to better parent and what te do when the children
become defiant and purport to be in charge.**
4 Sea May 17, 2021 NOT at Pas, 31-37.
2 See Jet
© Sea id.
“See Exhibit "M-9"; See Aisa March 15, 2021 NOT at Pas, 208-265,
45 See May 17, 2021 NOT at Pgs, 32-33.
“14.
2007-26322-0603 Opinion, Page |
Finally, Mother provided her own Exhibit regarding the alleged missed Soberlink tests,
with accompanying emails and supporting documentation, and testified that the alleged missed
tests directly correlated to dates when the children were in Fether’s custody or were. only missed
by minutes (to which she followed up with a compliant test}. Mother showed that she had not
failed any Saberlink tests since March. 1, 2020, that the children are obsessed with the testing,
and asserted that further use of the Saberlink device would continue to be destructive and
unproductive.
At the conchision of the third day, the undersigned scheduled a fourth day of testimony to
enable the represeniative from Soberlink to testify on June 8, 2021,"
On June 7, 2023 (one day before the scheduled fourth and final day of testimony}, in
typical fashion to remove anyone who disagrees with him, Father filed 2 “Petition for Special
Declarative Relief and to Disquatify the Honorable Daniel I, Clifford”. Father alleged that the
undersigned was impartial and should be considered a material witness fo the parties’ case due to
the undersigned’s remarks that the Court was of the impression that the parties had entered into
an agreement following the BAC threshold change in Mother's Soberlink program.”
Notwithstanding Father's efforts to delay the conclusion ef the proceedings, the June 8, 2021
date to allow the Soberlink representative to testify remained as scheduied and both Father and
Mother’s counsel had ample opportunity te ask questions,
As ordered, Soberlink also provided Chambers and the parties with their complete file,
which was made of record as Exhibit “C-10."
“See Hxhtbits “M-17" and "M-18": See also May 17,2021 NOT at Pgs, 122-133
4? See May 17,2021 NOT at Pgs, 123; 140,
“8 Ses May 25, 2021 Scheduling Order,
# See June 7, 202021 Father's Petition for Special Declarative Relief and to Disqnalify the Honorable Panfel J.
Clifford.
-~15-
2007 -26322-0603 Opinion, Page °
Despite Father’s fishing expedition to find fault in Mother’s Soberlink tests, three things
were notabie from the testimony of the Soberlink representative: (1) The representative testified
that while he recognized that tampering does happen from time to time, that has not happened in
this case;>* (2} Soberlink can identify and evaluate a series of positive tests to detect if the results
have been compromised, but looking at the data, nothing appeared wrong with the results;*! (3)
on average, a Soberlink client would utilize the device for four months,°? Mother had been using
the Soberlink device for over two years, an extremely uncommon time period for any parent in a
custody case according to the Soberlink representative.
. At the conclusion of the Soberlink representative’s testimony, Father and Mother's
counsel were given an opporkimity to present closing argument and directed to submit their own
proposed findings with regard to the custedy factors in Pa. CS, § 5328(a) by June 23, 2021, The
undersigned made arrangements for the child interviews to ocour the next day, June 9, 2021,
while the children were at school, in a neutral setting, vie Zoom. The parties were directed to
present areas of inquiry to address with the children to Chambers, in advance, to enable their
participation in the interviews, .
A complete review of the children’s interviews was contained in the August 9, 2021
- ‘Findings of Fact. The children’s preference during the interview was not “well-reasoned.*? ‘The
children’s behavior could best be described as a despetate effort to satisfy their Father’s
“agenda”, excluding Mother and placing him as the martyr. for the family’s issues and
30 See June 8, 2021 NOT at Pg. 34.
AV See fet at ft.
52 See fal at BER,
533 Sea August 9, 2021 Findings of Fact, Pactor 7; See also Tune 9, 202] NOT, child interviews.
“16.
2007-26322-0803 Opinion, Page 1
concerns. As a result, the undersigned placed reduced weight on the children’s testimony,
especially in light of the inescapable alienation at play.”
On fune 11, 2021, the undersigned denied Father's Motion for Reconsideration, filed on. .
May 5, 20213. There was no need for additional testimony as Father was provided with ample
time to present his case within the four days of hearings and, furthermore, he was given the
opportunity to make closing argument and submit written Findings of Fact.* Lastly, having no
basis in which the undersigned would be called as a “witness” in the matter, and thus Jacking any
foundation, Father’s Petition for Declarative Rehef and te Disqualify the Honorable Daniel J.
Clifford was denied on June 16, 2021.
Within @ month affer the record closed, and before the undersigned could issue his
August 9, 2021 Order and accompanying Findings of Fact, Father filed an Bmergency Petition to
Modify on July 6, 2021 and an Emergency Petition for Special Relief on July 22, 2021, repeating
nearly identical allegations as had just been testified to during the four (4) days of testimony. .
While not of record on appeal, Father further evidenced his sense of entitlement in the propased
Order he attached whereby he requests, among other things, that Mother undertake Soberlink
tests within 30 minutes of Father's request and failure to do so would be deemed a positive test
result?”
A See Jd
43 See Id.
& See Father's May 5, 2021 Motion for Reconsideration. Father specifically requested that the cowt reconsider
the denial of bis “Staiement in Lica of Testimony” ox altersatively, permit additional time for his festimany and
evidence than had already been piven.
*7 Rather has also filed two separate PFAs within the past moath on August 31, 2021 and September 17, 2021. The
August 31, 2021 PFA was denied affer a hearing by the Honorable Rhonda Lee Dantele on September &, 2021.
‘The second PFA remains paoding but the Temporary Order was denied by the undersigned.
-I7-
2007-26322-5603 Opinion, Page 1
On August 9, 2021, the undersigned issued comprehensive Findings of Fact consisting of
twenty-nine (29) pages with an accompanying Order of cighteen (18) Pages.
Thereafter, Father proceeded to file an appeal to ihe undersigned’s August 10, 2021.
‘Order, with his Concise Statement of Berors filed on September 9, 2021.
ISSUES
Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)G), Father raises the
following issues in the Concise Statement:
1, Whether the trial court erred as a matter of law and/or commitied an abuse of
discretion by failing to fulfill its obligation and responsibility to create a complete
record in a custody case so that a comprehenstve review oan be conducted on appeal
as follows:
a. By tefusing to allow Father to submit into evidence the complete history
of Mother’s alcoho] abuse so as fo understand the severity of her problem;
b. By refusing to allow Father to submit evidence and tesimeny be sought to
introduce that was relevant to the issue of custody and not duplicative,
inchiding evidence pertaining io Mother’s substance physical and
emotional abuses of the children, from May 24, 2017 to February 24,
2020;
¢. By refusing to allow Father to submit evidence and testimony pertaining
to i4 of the 14 custody factors, from February 24, 2020 to present,
because Father’s time for teatimony and evidence expired according to the
Court’s artificial time clock;
ad. If time was truly of the essence, then the Trial Court erred when it
precluded Father from submitting a written statement in lien of oral
testimony that would have been subject to eross-examination because the
Trial Court’s mamifactuzed time restraints effectively rendered Father an
unavailable witness pursuant to Pemsylvania Rule of Evidence 804,
«, By limiting Father's questioning of the Soberlink witness and by refusing
to admit both parties” communication with Soberlink, which would have
disclosed Mother’s frequent attempts to cireumvent Soberlink procedures
and deceive the Court; and
f By limiting Father from testifying on redirect after being cress examined
by Mother’s counsel and thereby, blocking Father's right to rehabilitate
bis testimony;
2. By taking the position, as the Trial Judge repeatedly stated on the record, that he
“has presided over numerous protracted proceedings involving the parties over the
past 5 years including, but uot limited to Custody and PFA’s (as recently as 2020
and 2019, respectively} and, as a result, is extremely aware of the cumulative
-18-
in
©
2007-26322-0803 Opinion, Page 4
history of the case,” which. position essentially insulates the Trial Judge from
appellate review because what is in the ‘Trial Judge's memory is not part of the
record, As a result, the Trial Court exchided relevant evidence nocusTiDg over
tnore than four (4) years of the children’s lives.
Whether the trial court erred as a matter of Jaw andfor committed an abuse of
discretion in relying on au ex parte letter submitted to the Court by the children’s
therapist, Dr. Green, without giving Father the opportunity to cross examine the
therapist and/or even have access to the letter
Whether the trial court erred as a matter of law and/or committed an abuse of
discretion in denying summarily Father's Petition for Declaratory Relief and to
Disqualify the Trial Iudge and that was docketed on June 7, 2021, especially
when the record does not support the conclusion there was an agreement
regarding Mother’s unilateral alteration to the Soberlink Device threshoid,
Whether the trial court erred as.a matier of lew and/or committed an abuse of
discretion when it terminated Mother’s obligation to continue to use the Soberlink
Device, especially given the evidence of record that Mother unilaterally increased
the threshold for alcohol detection making her negative tests meaningless and in
so deiag, ignored the children’s safety.
. Whether the tial court erred as a matter of law and/or committed an abuse of
discretion when it fatled ito give considerable weight to Mother’s alcohol abuse
and thereby avoided analyzing factors that should have been given weighted
consideration pursuant to 23 Pa. C.S.A § 5328{a).
Whether the trial court erred as a matter of law and/or committed an abuse of
discretion in granting Mother the sole discretion to name a third party for the
children fo contact regarding Mother’s drinking and driving, especially when the
record was clear that Mother would name her adult son, and that Father had
legitimate concerns about the adult son's ability to manage Mother’s drinking,
Whether the trial court erred as a matter of aw and/or committed an abuse of
discretion in not asking the children critically relevant questions provided by
Father to the Court as per its June 8, 2021 request, and in dismissing the credible
concerns and reasonable preferences of the children.
Whether the trial court erred as a matter of jaw and/or coramitted an abuse of
discretion in making credibility determumation for Mother and Father that are not
supported by the record and which appear to be a blatant attempt by the Trial
Court to render its decision impervious to review on the issue of credibility alone.
- 10, Whether the trial court erred as a mater of law and/or committed an abuse of
diseretion in making numercus Findings of Fact that are not supported by the
second, including but not limited to the finding that Father allegedly engaged in
“19.
2007-26322-0503 Opinion, Page i
conduct to alienate the children from Mother despite the abundance of evidence in
the record that the children are estranged from Mother and want to reside with
Father as a result of Mother’s abuse of the children and her inability to fimctian as
4 parent due to her alcohol abuse.
11, Whether the trial court ered as a matter of law and/or committed an abuse of
discretion in denying Father’s Motion for Reconsideration despite the Court's
May 11, 2021 Order to hear arguments for the same.
12. Whether the trial court eed as a matter of law and/or committed an abuse of
discretion in finding Father in contenmpt of the Orders dated June 8, 2020, the
Agreed Order of February 24, 2020 and section 5(8 of the March 22, 2021,
especially since Mother does not have clean hands with respect to the Orders of
Custody and participation in therapy.
13. Whether the triat court erted as a matter of law and/or committed an abuse of
disoretion rendering a decision that is based on, its ill will and bias towards Father,
which is palpable in the record, rather than what is in the best interests of the
children
14. Whether the trial court ered as a matter of law and/or committed an abuse of
discretion in granting Mother sole legal custody of the children when the record is
replete with incidents of Mother’s poor judgement regarding the children,
including but not limited to these occasions where Mother elected to consume
alcohol in excess when with the children and to endanger the children’s safety by
driving a vehicle with the children inside after imbibing alcohol.
STANDARD OF REVIEW
The issues set forth in Father’s Concise Statement of Errors Complained of on Appeal, all
_ of which pertain to abuse of discretion by the trial court, prompt the Superior Court to apply the
following standard of review,
When making a decision on 4 petition to modify custody, “a court must conduct a
thorough analysis of the best interests of the child based on the relevant Section 5328(a)
factors.”*? 23 Pa.C.S, § 5328(a) factors to he considered include the following:
(1} Which party is more likely to encourage and permit frequent and continuing
contact between the child aud another party.
* Ses AV. v.S.T., 87 A.3d 818, 822 (Pa, Super. 2014), citing BD. v, MP. 33 A3d 73, 80 (Pa. Super. 2071)
20.
2007-26322-0603 Opinion, Page «
(2) The present and past abuse committed by a party or member of the. party's
houschold, whether there is a continued risk of harm to the child or an abused
party and which party can better provide adequate physical safeguards and
supervision of the child.
(2.1) The information set forth io, section 5329.1 (a) (relating to consideration of
ehild abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and contianity in the child's education, family life and
coumnunity life.
(3) The availability of extended family.
(6) The chiid's sibling relationships.
{7) The well-reasoned preference of the child, based on the child's maturity and
judgment.
(8) The atternpts of a parent to turn the child ageinst the other parent, except in
cases of domestic violence where reasonable satety Imeasures are necessary io
protect the child ftom harm.
(9) Which party is more likely to maintain a loving, stable, consistent and
nurturing relationship with the child adequate for the child's emational needs.
(10) Which party 's more Hkely to attend to the daily ptysical, emotional,
developmental, educational and spectal needs of the child.
{11} The proximity of the residences of the parties.
{12} Each party's availability to care for the child or ability to make appropriate
child-care arrangements.
{13} The level of conflict between the parties and the willingness and ability of
the parties to cooperate with one another. A party's effort fo protect a child from
abuse by another party is not evidence of unwillingness or r inability fo cooperate
with that party.
{14} The history of deg or alcoho! abuse of a party or member of a party's
household,
(15} The mental and physical condition of a part or t member of a party's
household.
21.
2007-26322-0603 Opinion, Page :
{16) Any other relevant factor.”
23 Pa. C.8. § 5328{a)(1-16}.
All factors listed pursuant to § 5328{a) must be considered when entering a custody
Order and shall be delineated on. the record, in open court, or in a written opinion or order”? In
expressing the reasons for ifs decision, the trial court is only required to explain that the
enumerated factors were considered and the custody decision is based on those considerations.“
In reviewing a custody order, the reviewing court's scope “is of the broadest type and
[the} standard is abuse of discretion.”*! The reviewing court “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.“ Because the reviewing court cannot make independent
factual determinations, it must “deter to the trial judge regarding credibility and the weight of the
evidence. The trial judge’s deductions or inferences form its factual findings: however, do not
bind [ihe reviewing court]. {ft} may reject the trial court’s conclusions only if they involve an
error of law or are unreasonable in light of its factual findings,”
Furthermore, a court may exercise its power to hold an individual in civil contenapt to
enforce compliance with its order but not to inflict punishment.” The contempt power is
B |
See AV. v.5.T., supra, at £22-823.
See fd at 823,
8 See VB. v. LELB., 55 Ad £193, 1197 a. Super. 2012).
2 See Jet
8 SeeCAl.v. D.S.M., 136 A.3d 504, 506 (Pa. Super 2016), offing S.WLD. y, S.AR., 96 A.3d 306, 400 (pa.
Super. 20143.
4 See Singiko v, Sinaiko, 644 A.2d 1005, 1009 (Pa. Super, 1995),
-2?-
2007-26322-0603 Opinion, Page z
essential to the preservation of the court's authority and prevents the administration of justice
from falling inte disrepute.
When considering an appeal from an Order holding a party in contempt for failure to -
comply with a custedy order, the scope of review by the appellate court is narrow and will only
reverse upan a showing of abuse of discretion.“ Abuse of discretion is fourd if the court
rnisapplies the law or exercises its discretion in & manner lacking reason.®’ However, the
reviewing court must place grest reliance on the sound discretion of the trial judge when
reviewing an order of contempt.”!
ANALYSIS
it is worth nofing that Father's five-page Concise Statement raises fourteen (14)
challenges to the Court Order of August 10, 2021. The approach to appellate advocacy
embarked on by Father brings to mind the words of Justices Ruggero J, Aldisert and Robert H.
Jackson:
“With a decade and a half of federal appellate court experience behind me,
I can say that even when we reverse a tial court it is rate that a brief
successtully demonstrates that the trial court committed more than one or
two reversible errors, I have said in open court that whenI read an
appellant's brief that contains ten or twelve points, a presumption arises
that there is no merit to any of them ... fand? it is [this] presumption ... that
reduces the effectiveness of appellate advocacy.”
*} See Garry, Peters, 773 A.2d 183, [89 (Fa. Super. 2001).
* See Hopkins v. Byes, A.2d 654, 656 (Pa. Super 2008).
a See fd
& See Lachat, supre at 487-88. .
« Father's Concise Statement related to instant appeal is in similar fashion to his Concise Statement previously
fited in his appeal of the undersigned’s Custedy Grder of August 31, 2027, Therein, Father reised avelye (12)
challenges to the trial court's Custody Order Gwhich the Superior Court ultimately affirmed on June 13,2618}.
73.
2007-26322-0603 Opinion, Page 2
Aldisert, “The Appellate Bar: Professional Competence and Professional Responsibility —- A
View From the Jaundiced Eye of the Appellate Judge,” 11 Cap. UL. Rev. 445, 458 (1982)
{emphasis in original),
“Legal contentions, like the currency, depreciate through overissue, The
mind of an appellate judge is habitually receptive to the suggestion that a
lower court committed an excor., But receptiveness declines as the number
of assigned errors increases. Multiplicity hints at a lack of confidence in
any one, Of course, | have not forgotien the reluctance with which a
lawyer abandons even the weakest point lest it prove alluring to the same
kind of judge. But experience on the bench convinces me that multiplying
assignments of error will dilute and weaken 4 good case and will not save
1 a bad one.”
Jackson, “Advocacy Gefore the United Siates Supreme Court,” 37 Corel! LQ, 1, 5 (95D.
Though oft quoted by the judiciary, these passages tend to “ring true,” as demonstrated
by the numerous issues raised by Father in the within sppeal, as well as in his previous 2017
custody appeal, Nonetheless, the Court has attempted to ascertain the gravamen within each of
Father’s issues in the within Opinion.
I. The Trial Court Made a Comprehensive Record Consisting of Four days of
Testimony, fx Camera Interviews of the Children and Nearly 50 Trial Exhibits
Providing Father Ample Opportunity to Present his Case on 2 Modification of the
2020 Agreed Order
In Father's first error complained of, and ils six (6) subparts, Father alleges that the trial
court abused its discretion by not “allowing” Father to submit certain evidence and testimony so
that the trial court could maintain a complete and comprehensive record for review,
“In all civil litigation, the trial judge possesses broad pewer and discretian to control the
couse of the tial, [Citation omitted] While every litigant is ‘entitled to a fair and impartial
2007-26322-0603 Opinion, Page z
trial... that does not mean that a trial judge must be a ‘mere moderator’ Furthermore, “the
admission or rejection of rebuttal evidence is within the sound discretion of the trial judge”!
In line with the trial court’s authority to control the course of tial, Utigants may not
relitigate issues that have been established prior fo an agreed order, absent a showing of fraud or
mutual mistake that may have induced the litigant to enter the agreed order.” This is especialiy .
true in child custody cases where parents often desire to re-litigate past transgressions from many
years ago while our family courts are confronted with an enormous docket, backlogs and with
court time precious.”
As exhibited throughout the trial, numerous pleadings, and in his Concise Statement of
Errors, Father effectively sought to introduce evidence of the complete history of the parties’
custody matter, despite having just entered isto an Agreed Order on February 24, 2020 only
seven months prior to his modification petition and a Scheduling Order directing the limitation
of evidence from February 24, 2020 forward. Father further sought to introduce a Mt. Byerest
sized pile of decuments and exhibits purportedly related to the oustody factors through his
“Statement in Lieu of Testimony” and his Motion in Limine (instead of providing evidence and
testimony within his case-in-chief}.
Not once did Father allege that he was fraudulently induced into the 2020 Agreed Order
or that it was a result of mutual mistake such that he would be allowed fo re-litigate issues prior
0 See Daddona y. Thin, 891 A.2d 786, 800 (Pa. Crwhh Ct 2006).
"See Mapp ¥, Dube, 479, A2d 553, 557 (Pa, Super. 1984)
7 See DM v, V.B., $7 A.3d 323, 328 (Pa, Super, 2014) (Finding that the appellant, having entered into an agreed
support order, could not relitigate the issue of paternity absent a showing of fraud or mytual mistake indueing
the appeliant te entered inte the agreed Order.)
* Jt is worth noting the enormous attention provided to this child custody case during the past year including, but
not limited to, four days of testimony, i camera interviews and numerous Orders, all during a time period of a
judicial emergency due te the COVID-79 pandemie..
25.
2007-26322-0603 Opinion, Page ¢
to the February 24, 2020 Agreed. Order. in fact, on the contrary, Father actually acknowledged
in his testimony that he had “prudent reason to come to an agreement with the understanding
that we would revisit in six months...’ Thus, Father lacks any legal basis upon which to claim
that he was prejudiced from providing his extensive amounts of evidence prior to the February
24, 2020 Agreed Order, having already considered the igsues upon which Father made his
agreement, Nonetheless, the undersigned still proceeded to grant Father’s Motion in Limine, in
part, and permitted Father to introduce limited evidence/testimony concerning Mother’s alleged
alcohol use from January 2019 forward (a full year prior to the February 24, 2020 Agreed Order
evidence cut-off ard conteary to the terms of Judge Cariuecio’s Scheduling Order}.
With thet backdrop, it is the trial court’s conclusion that Father was given ample
opportunity to present his-case in-chief.*
Even so, Father still attempts te distort the record as not being complete or
comprehensive in ight of four and a half (4 %4) days of testimony and nearly 50 trial exhibits.
Father's alleges that he was not allowed to present certain evidence with regard to Mother’s
alleged substance physical, and emotional abuse. Father further claims that the record is not
complete due to the Court's denial of his “Statement in Lieu of Testimony” and not admitting
Father's compilation of personal communications to and from Soberlink.
As noted, supra, the trial court has broad power to limit the course of trial, including but
not limited to, the imitation of cumulative evidence being presented for issues that were
addressed prior to an agreed order. Even though Father was appropriately limited to the
“See Marels 15,202] MOT at Pe. 41. .
73 See March 22, 202] Memorandum and Order,
%% See February 3, 2021 NOT and March 15, 2024 NOT, generally,
-26-
2007-26322-0603 Opinion, Page 2
introduction of evidence after the February 24, 2020 Agreed Order for his case-in-chief, Father
was still given upwards of two (2) full days to elicit testimony on what he believed was
insportant to proving his case. Uipon review of his testimony, Father chose instead to primarily
focus on Mother’s alleged alcoho! abuse.?? When it appeared that Father used up much of his
time arguing over the inadmissibility of evidence and not addyessing other pertinent factors, he
sought to introduce a 68-Page “Statement in Liew of Testimony” (G74 pages including
attachments). Having uo such lepal basis to enfer such a pleading into the record of the
proceedings, the undersigned denied Father’s request to have the document introduced as
“evidence,”
In the overali, Father was given ample time te question the children’s treating therapist
with regard to the children’s therapy, to testify to his own version of events that transpired from
February 24, 2020 forward, and to question the Soberlink representative (on whether Mother
was, In fact, cireumventing the device}. However, in large part, Pather presented inadmissible
questions that amounted to inter ala, leading questions, inadmissible hearsay, and. questions
irrelevant to the instant custody matter before the cout.” Mother's counsel, Joanna Furia,
Faquire, alse timely and concisely raised objections to Father's inadmissible questions. It is
clear frem the record that such questions were properly suppressed pursuant the Pennsylvania
Rules of Civil Procedure,
Father simply attempted to control the entire Court proceeding to the length of his
testimony and the introduction of thousands of pages of cumulative, irrelevant, and
# Motably, while Father represented himself during the protracted hearings, at times, the undersigned attempted to
puide his inadmissible questions and statements se as to permit him to elicit an appropriate response.
2 As a self-represented litigant, Father is bound by the same mules and procedures as a represented party. The
undersigned is not aware of ayy other legal proceeding wherein an attorney or liHpant would be permitted ta
introduce such a document as evidence in lien of actual testimony.
7) See February 3, 202] NOT and March 15,2021 NOT, generally.
. 24
f
2007-2632 2-0603 Opinion, Page ¢
foundationally lacking evidence, Had the undersigned pemniited every piece of evidence that.
Father sought to admit, and permitted Father to filibuster with several more days of testimony,
the undersigned would have delegated ite authority to Father (relegating jiself as a “mere
moderator” where the matter would never reach the pcint of completion). Therefore, this Court
did net abuse its discretion and created a comprehensive and complete record such that a
comprehensive review can be conducted on appeal.
Il. The Trial Court bas the Autherity to Control its Courtroom ‘aad Lhnit Testimony
‘Appropriately
Tn his second error complained of, Father alleges that the trial court abused its discretion
by excluding evidence over the past four {4) years, recognizing that the undersigned was
extremely aware of the cumulative history of the case. Father claims that it is because of the
undersigned’s awareness that certain evidence was excluded,
This issue is thoroughly addressed in the analysis of Section [, supra such that it should
not be necessary to repeat here for the reader,
Howeves, for further completeness, the Superior Court has recognized, through both the
Rules of Civil Proceduze and accompanying case Jaw, that a trial court does not abuse its
diserstion when if limits the cumulative testimony and evidence before the court by way of time
constraints.” Ip Lafferty, appellant raised issue with the time constraints the trial court placed
on his case during trial, contending that he was only limited to ane (1) hour of testimony.® The
Superior Court found that Pa R-C.P 223{1) provides the trial court with “broad power and
discretion ta limit the number of witnesses whose testimony is similar or cumulative as well as
# Sea Laffeaty v, Ferris, No. 1131 MDA 2016, No. 1619 MDA 2016, 2017 WL 4180000. #7 (Pa. Super. Sep, 21,
2017}.
al See fd
PR.
2007-26322-0603 Opinion, Page <
any cumulative evidence presented to a jury.” Pursuant to such Rule, the Superior Court
reasoned that the trial court had the authority to restrain the testimony, as the appellant already
had a full days’ worth of testimony and the trial court had still not heard from the opposing
party. Having had ample time to present his case and presenting testimony that appeared to be °
duplicative, the Superior Court held that the trial court did not abuse its discretion by restricting
the appellant's testimony to one additional hour after having a full day to testify.“
Here, Father asserts a nearly identical issue in that he was restrained from presenting
- cumulative evidence over the past four (4) years after being provided with nearly to (2) full
days te testify. Similar to Lafferty, the. undersigned restrained Father from overwhelming the
record with copious amounts of cumulative evidence such that the record would not be inundated
with testimony and evidence that had already been given or addressed in prior Orders. In fact,
much of Father's proposed evidence hindered on being duplicative of alcohol abuse allegations
that have been previously addressed in separate Orders throughout the years. However, unlike
Lafferty, Father was essentially given the equivalent of two (2) full days of testimony before
finally hearing testimony trom Mother (as opposed to the (13 day in Lafferty). The undersigned
appropriately limited ‘Father's testimony and evidence such that he would be restrained from
Providing sinclar or cumulative evidence aad to allow for sufficient time for Mother to present
her case,
Thus, the undersigned did not abuse its discretion by uot pertuitting Father to present
cumulative or similar evidence during the time allotted,
a See fd
33 See Id at *8.
4 See Id.
39.
2007-26322-0603 Opinion, Page <
{U, 106 A.3d 728, 732 (Pa, Super. 2014}, cing Green v, Green, 69 A.3d 282, 288 (Pa. Super.
2013): Pa. RAP. 302fa).
* See Green v. Green, 69 A.3d 282, 288 (Pa, Super. 2013), cifing Summers v. Summers, 15 A. ad 786, » 790 (Fa,
Super. 2042}.
«30
2007-26322-0603 Opinion, Page <
As evidenced by Dr. Green’s June 28, 2021 letter report (admitted and sealéd post-
hearing as Exhibit “C-11"), the children aceused the therapist of miseepresenting their progress
to the court as their “Father had showed [them] the reports Dz, Green submitting {sic} to the
Court.” Thus, in an attempt to rebuild the trust that Father had destroyed, the undersigned
directed in the August 9, 2021 Order that Dr. Green no longer issue a written report te the
parents (but may communicate directly with the parties}. Furthermore, Father was specifically
directed to not share the Findings accompanying the August 9, 2021 Order or any other legal
document with the chitdren in order to preserve the children’s relationship with the treating
professionals.*?
Accordingly, Father's third error complained of should be deemed waived for faulure to
object to the admission of Dr. Greeni’s progress letters on the reeord. Furthermore, the Court did
not abuse its discretion in sealing the Tune 28, 2021 letter from Father given the inappropriate
and ongoing history of Father sharing legal documents and therapist updates vith the children
and to protect the children’s relationship with their treating professional.**
LY. Father’s Petition to Disqualify the Undersigned was Made without any Legal or
Factual Basis
in his fourth error complained of, Father alleges that the trial court abused its discretion
by denying Father’s Petition for Declaratory Relief and ic Disqualify the Trial Fudge.
* See Exhibit “C-£1". The children’s comments represent an all too fansiliar refrain that has been routinely taken
by Father in his manipulation of treating professionals.
3$ See August 9, 2021 Order
% As noted in the August 9, 2021 Findings of Fact, there had been a musical chairs rotation of mental health
professionals appointed by the undersigned in the case due to Father's manipulative bebavior.
© tt should be noted that Father's inappropriam sharing of legal documents, and thereafter questioning the
children of its contents, also necessitated the sealing of the children's /7 camera interview transcripts, Father
has not raised this issue in this appeal and thus it should be deemed “waived, Notwithstanding the waiver,
Rather bas since filed a mation with the trial court to unseal the transcript on September 23, 2021 {well past the
deadline for appeal).
31-
2007-26322-0603 Opinion, Page
The standards for recusal are well established such that it is “the burden of the party
requesting recusal te produce svidence establishing bias, prejudice or unfkirness which raises
substantial doubt as to the jurist’s ability te preside impartially.””!
Furthermore, the Pennsylvania Supreme Court has established the following:
“.. we will [not] pernut a party who is dissatisfied with the progress of the trial
mid-stream to arbitrarily attempt to cause the disqualification of the presiding
judge. Judge shopping has been universally condemned, and wiil not be tolerated
at any stage of the proceedings, Thus, where fabricated, frivolous or scurrilous
charges are raised against the presiding judge during the course of the
proceeding, the court may summarily dismiss those objections without, hearing
where the judge is satisfied that the complaint is wholty without foundation. In
such case the complaining party may assign the accusation as a hasis for post-trial
relief and, if necessary, a record oan be developed at that stage and in that context.
Where, as here, a judge concludes that the allegations justify an evidentiary
hearing in which he will testify, it then becomes incumbent upon that judge to
step aside for the appointment of another judge to hear and rule upon the issue of
disqualification.” [emphasis added]
See id, at 208-209, citing Mux. Publications, Inc. vy. Ct. of Com. Pleas of
Philadelphia County, 489 A.2d 1286, 1287 (1985)
Here, the undersigned dismissed Father’s motion without a hearing es a result of the
motion wholly lacking any foundation. The undersigned bad simply referenced a prior Order
relating fo the Soberlink program on the record, not in the capacity ag a witness at an evidentiary
hearing nor to make a credibility determination.”
Father resis his motion on the conjecture that the undersigned somehow is a “material
witness” due to the undersigned’s statements on the record that there was an agreement between
the parties following the recalibration of the Soberlink device. However, pursuant to Com v. Dip
and the Supreme Court’s standards, fhe undersigned was not making such statements in the
capacity as a witness, but rather to clarify the extensive pleadings and procedure in this matter.
Ww See Com. ¥. Dip., 221 A.3d 201, 206 (Pa, Super. 2019), citing Com. v. AbnJamal, 720 A.2d 79, 89 (1998).
2 See February 3, 2021 NOT at Pgs, 134-142
3D
2007-26322-0603 Opinion, Page <
in addition, the Court specifically directed the testimony of a representative fom
Soberiink, and to produce thelr entire file, to ensure that both parties, particularly Father, had
ample opportunity to address any inconsistencies, Father's motion was merely another attempt
to disiort the record and arbitrarily disqualify the undersigued as he was dissatisfied in-how the |
trial was proceeding after his own two days of testimony.** While Father did not necessarily
‘agree’ to the Soberlink recalibration, he was absolutely given notice of the adjustments, both
through his counsel and the Order of February 24, 2020. In addition, Father and his then legai
counsel proceeded to agree to the entry of an Agreed Custody Order on she same day, without
Taising or including any provisions for another recalibration of the device.
As indicated throughout his numerous filings, Father's disdain and lack of respect for the
Court is profoundly apparent. In this filing, he simply sought to disqualify the undersigned at the
proverbial “twelfth hour’ and following multiple days of testimony. This was yet another
attempt to maintain full control in how the proceedings would unfold (presumably, if granted,
resulting in a whole new multiple day trial with different judge).*4
Accordingly, the court did not abuse its discretion in summarily denying Father’s Motion
to Disqualify,
¥. Father has Created a Hyper Ghsession with the Soberlink Device and has
Weaponized the Device Despite Mother’s Compliance for Over Two and a Half
Years
Theé court reiterates that this has been a pattem of Father’s behavior for full control and to remove anyone wha
disagross with his perspective,
As if te facther prove the point, the minor children coniimed to Dr, Green that Father told them that the trial
“wasn’t going well.” See Exhibit "C-9."
-33.
2007-26322-0603 Opinion, Page 2
In Father's fifth error complained of, Father alleges that the tial court abused its
discretion when it texminated Mother’s obligation. to use the Sobertink device and thus
disregarded the children’s safety, Notably, Father raised a simtilar issue on appeal in his October
23, 2017 Concise Statement of Errors to the undersigned’s August 31, 2017 Orde prior to the
implementation of the Soberlink device in 2019 (with respect to Mother’s alleged | cohol abuse
and safety of the children). :
The undersigned relterates that an abuse of discretion, is only found when the trial court’s
eonchisions are not supperted by competent evidence on the record or unreasonable in light of
the factual, findings?
As indiested in both the Findings and the prior 2017 Opinion, the undersigned has taken
appropriate and immediate measures to address Father’s allegations of alcohol abuse As aresult
of the 2019 PFA, the parties entered into an Agreed Order whereby Mother wo wilize the
Seberlink aleohol monitering device prior to and during her custody time periods. he testified to
by the representative from Soberlink, clients on average use the device for 4 months to provide
assurance io the other parent and/or the Court, after which the device is no longer required,?®
However, leading up to the 2021 hearings, Mother had inaintained use of the Sobentink device
for aver two and a half years, creating a byper obsession in both the children and Father over use
of the device, :
The record well established that Mother's use of the Soberlink device has since disrupted
any efforts to have a peaceful observance of Mother’s custodial time and has beer wespontzed to
achieve Father’s goal of total autonomy over both Mother and the children. Bvidence of such
‘weaponization was cleat from the testimony that the children and Father request tht Mother use
* See VB vy. LEB. supra, at 1197; See dlso See CAS, v. D.S.M., supra, at 506.
* See June &, 2021 NOT at Pg. 52.
-34-
2007-26322-0603 Opinion, Page :
a
the device “on demand” simply when the minor children feel that Mother’s demeanor has
changed.” If Mother does not comply or acts different in any way, Father is immediately
notified by the children and within minnfes he appeers to pick the children up “as if responding
fo a five-alarm fire.” This has even occwred during the late hours of the night, when the children
should be asleep in bed, and at events when other family members have heen present to address
any concern the children may have hed 2
As in 2017, and continuing to present, Father repeatedly relies on feedback supposedly
conveyed from the minor children to him. Even after multiple therapists concluding that it is not
the children’s responsibility “te collect evidence” on Mother's alochol use, and that they are not
of the age, maturity, or position to accurately report auch behavior, they contime to do so
knowing that, ifthey do, they will obtain Father’s approval and he will pick them up.
Despite the obsession, Mother bas never had a DUI, never had any indication that alcohol
use has affected her work performance, nor that alcohal wie affects her daily routines or
relationships. In fact, since using the Soberlink device, Mother has complied with a staggering
number of 1276 fests and has not failed one test since the February 24, 2020 Agreed Order,*?
Whiis still recognizing the 2019 incident at the school ag a mistake in judgment, Mother has
remained ramorseful and apologetic.
The undersigned has spent considerable effort addressing this issue throughout the years
and has gon¢ to substantial lengths to ensure transparency concerning the Soberlink device
(including, but not limited to, the February 8, 2019 Order: the December 17, 2019 Order; the
“7 See February 4, 2021 NOT at Pes. 204-231
% Seed
See Bxhibit “C-10"; Exhibit “M-17"; and Exhibit “M-18”, Father insists that this is a result of Mother changing
the calibration irom zero tolerance to a threshold of 02. While not an expert in Blood Alcohol Content
readings, it appears that even registering compliance betyeen 0 and .02 would not substantisity impair an
indlvidual to the extent that the children's welfare would he in danger.
-35.
2007-26322-0603 Cpinion, Page :
February 24, 2020 Order; the granting of Father's Motion in Limine (in part); and ensuring the
testimony directly from a Soberlink representative). Therefore, the Court did not abuse ifs
discretion in concluding that Mother does not suffer from a substances abuse issue, such that there
was a genuine tisk of the children’s safety, and appropriately proceeded to remove the use of the
Soberlink device. .
VE The Trial Court Appropriately and Thoroughly Analyzed Ali Custody Factors in its
twenty-nine (29) page August 10, 2021 Findings of Fact, Including the History of
Drug and Alcohol Abuse
In his sixth error complained of, Father alleges that the trial court abused its discretion by
not giving considerable weight to Mother's alleged alcohol abuse and thereby not analyzing the
custody iactors pursuant to Section 5328(a} appropriately,
The consideration of Mother’s alleged alecho! abuse and the court's analyzation thereof
was thoroughly addressed in Section V., supra.
However, for further completeness, the Court did issue a comprehensive Findings of Fact
consisting of twenty-nine (29) pages with an eccompanying Order of cighteen (19) Pages
addressing each of the custody factors completely. Just as the Superior Court found in Father's
201% sppeal to the undersigned’s Angnst 31, 2017 Order, the undersigned’s “opinion and
findings of fact provide a careful and detailed examination of the evidence and a comprehensive
analysis of each of the seation 5328(a) custody factors and each of Father's claim on appeal.”
0 See LED, ¥, MLAD,, No. 3200 BDA 2017, supra.
36-
2007-26322-0603 Opinion, Page ¢
Purthenmore, this Court must again stress its concern over Father's continued: reliance
upon the minor children’s observations as indisputable facts; in doing so, he only further
iluminates his attempts fo alienate the minor children from Mother by reinforcing and validating
their perception ag reality,!"!
Therefore, the Court properly analyzed each custody factor pursuant to Seetion 5328(a),
including the consideration of Factor 14 relating to alechol abuse, and did not abuse its
discretion,
YH. Father's Incessant Need to Control Mother’s Decision Making and Further Disrupt
Mother's Custodial Time has Reen Made of Record Throughout Many Years of
Litigation
In his seventh exter complained of, Father claims that the trial court abused its discretion
in granting Mother the opportunity, in the August 9, 2021 Order, 10 name a third party for the
children to contact if they are concerned about Mother’s alleged intexication.©
Notably, in Father's Concise Statement of Errors, he once again attempts to
imischaracterize and distort the record by stating that the purpose of Section 27. of the
undersigned’s August 9, 2021 Order was for the named third party to “manage Mother's
0 Tt also bears noting that the undersigned’s August 9, 2021 Order did address any future concern on the issua
with the inclusion of Section 27. whereby:
“Within 2 days of the date of this Order, Mother’s Counsel shall inform Chambers as fo the designation of
a third party adult to serve as a contact for the children, In the event the children are concemed about being
safely transported in a vehicie driven by Mother, they shall contact the third party. Ef the children contact
Father instead of the faird party, Father is directed to contact the third party. Father is not authorized to
pick up the children from Mother’s custody unless specifically agreed upon with Mother or the third party.
The third party may be a friend, eviative or neighbor and is not subject fo Father's approval. The third party
shall execute, and file of record, the Acknowledgement aifached hereto and made part hereof as Exhibit
vA
1 See Foomote 98, spre
2007-26322-0603 Opinian, Page
drinking”? At no point in the Crder does the undersigned direct a third party to “manage
Mother's drinking”. )
The purpose of the provision was for the third party to assess whether Mother is, in fact,
intoxicated such that she could not safely drive the children due to Father’s allegations. that
Mother is intoxicated based solely on information from the minor children (even after passing a
Sobelink test). Thus, instead of relying on the perceptions of the 12 and 14 year old children, an
adult could step in and assess the situation. It is no surprise to this Court that Father wanted the
children to report to him and him alone for any suspicions of Mother’s intoxication. The Order
seeks fo remove Father entirely from the situation as he has repeatedly misused the process
originally intended by the use of Sobedlink,
Furthermore, Father*s concerns about Mother’s adult son, Lag. are not credible,
During the priar round of child interviews in 2017, the children indicated a love for their step-
brother Lag. Lagi has been a constant presence in the children’s lives and, despite his age
difference, has periodically lived with Mother and the children.
In the most recent child interview, Pagaj maintained that she still loves Lgggyy Howover,
she also recounted an incident of “sibling rough-housing’ spawning the PFA filed Sy Father in
February 2, 2017 (4 years ago, when Pee would have been $3, claiming that she now believes it
was abuse, P@gp’s statement could only be described as revisionist history emanating from
Father, as both children were due to participate in Ligge’s upcoming wedding (and, further,
Pg never mentioned this to the undersigned in the 2017 i camera interview).
Finally, Father’s complaint that Mother was given sole discretion to choose a third party
was necessary given Father's constant interference with the Court and treating professionals, his
MB Se August 9, 2021 order,
2007-26322-0603 Gpinion, Page ¢
non-compliance with Court Orders and his all-consuming need to assert total control over
Mother and the children’s lives. Father seeks to have Mother report to Father, on demand, if the
children suspect she is intoxicated (and further limit the decision making and input from Mother
unless Father consents),!™ However, as the therapists haye advised the children, it is not their
role to constantly monitor Mother, “collect evidence,” and report to Father their perception of
Mother's alleged intoxication." Father maintains an inability to rely on the authority of anyone
that is not himself, especially if they disagree with his position or recounting of events,
Thus, the Court did not abuse its discretion in ordering Mother to name a third patty,
without the approval of Father, for the children to contact if they were concerned about Mother's
ability to safely transport them in a vehicle as an additional safeguard.
Vill. Father has Maintained Clear Efforts to Undermine any Professional Help for the
Children te the Extent That He Has Influenced the Children’s Decisions and
Preferences
Ia his eighth error complained of, Father alleges that the trial Court abused its discretion
by not asking the questions that Father provided to Chambers for the fr camera interviews and
ultimately dismissing the preferences of the children,
At first glance, the taal court is deeply concerned with Father’s statement that the
undersigned did not ask the questions Father provided, as the trial court thetarically asks: “Haw
would Father know?” The undersigned sealed the transcripts of the child interviews as Father
has exhibited a history of sharing court related documents with the children and confronting
them with what they have stated. Despite the undersigned’s precaution to protect the children, it
‘4 See Father's Proposed Order within his Pre-Trial Statement.
13 See Exhibit “C-11",
39.
2007-26322-0603 Opirson, Page 4
appears Father inappropriately “grilled” the children about their interviews, even without having
access io the transcript (even fiuther basis upon which the transcripts should remain sealed),
“It is within the trial court's purview as the finder of fact to detennine which enumerated
best interest factors are most salient and critical in each particular child custody case." In
addition, “[a)ithough, a child's wishes are important, they aze net controlling in custody matters,
and the child's preference, to be given credence, nnust he based on reasons which comport with
his [her] best interests, whether or not he [she] is able to identify them as such?"
Here, the caurt placed reduced weighi on the children’s preference as Father has routinely
influenced the children by way of his alienating behavior. Specifically, as addressed, supra,
throughout this Opinion, Pather’s theme has been to maintain total and complete control over the
children’s lives by way of holding himself above all treating professionals and even the Court.
This has been routinely evidenced from the revolving door of appointed counselors and
therapists, whereby the undersigned has been compelled to repeatedly replace due to Father
interfering with the process:
(1) Ms. Krystiane Cooper, appointed April 2017 and ferminated due io Father's
interference;
(2) Ms, Kristine Kershner, appointed September 2019 and teruinated after Father
undermined the sessions by telling the children they could not trust the therapist
and no longer needed therapy;
(3} Dr. Heather Green, appointed March 2021 and Father has already made attempts
to have the children believe they cannot trust, Dr, Green;
198 See M.ILM. v. ML.G,, 63 A.3d.331, 339 (Pa, Supet, Ct. 2613),
1? See Watters v. Watters, 757 A.2d 966, 969 (Pa. Super. Ct, 2000),
18 See Fabruary NOT at Pg, 42
“© See Exhibit “C11
a0.
2007-26322-0803 Opinion, Page «
(4) Dr. Geraid Belletirie, appointed as co-parenting counsslor and terminated after
Father attempted to use the sessions to forward his own agenda and not improve
the co-parent relationship;"!*
(5) Dr. Donna Tonrey, appointed in August 2019 and terminated after concluding that
Father could uot demonstrate a regard for the opinion and authority of other's
involved to resolve the situation.!!! .
Father instills the impression in the children that al} the treating professionals have
“gotten it wrong” or bave “betrayed their confidences”, especially if they find any fault with
Father"? When any of the professionals have attempted to address the issues to help the
children, Father claims that they are just “echoing the same false narratives” instead of
recognizing that he, himself, is part of the greater problem."? When the therapists report to the
Court that Father is a source of the children’s issues, he inappropriately shares that information
with the children such that they feel “comered” and have the need to defend Father ag a “good
person.”
This was made clear during Palp’s in camera interview when she repeatedly called
Mother a bad person, requested to be with Father 100%, and claimed to not like the two prior
therapists because they had “lied to her.” Page went even further io state that she could not even
trust the undersigned because he allegedly believes that her “dad is a bad person,” When asked to
clarify, she stated thet, if the undersigned thought that Father was a great person and Mother a
bad person, she would be with Father 100%, As described in the August 9, 2021 Findings, rae
exhibited a desperate attempt ta satisfy and please her Father and/or complete his agenda,'4
i? See August 31, 2037 Findings of Fact .
1 See Exhibit "C-6." :
#2 See March 15, 202] NOT at Pgs, 164-167.
U3 See dd at 167-68.
- 34 This was further emphasized dus to Pap being clearly aware chat Father favors Baggy over her. See August 9,
2021 Findings of Fact, Factor 7.
-41-
2007-26322-0603 Opinion, Page 42
Furthermore, the children have clearly parroted Father’s claims that their Mother is an
alcoholic, despite being subject to an alechol monitaring device for over two and a half years.
Even during the late hours of the night, or when at family functions, the children feel the need to
constantly moniter Mother and teport back to Father. The children uncessonably place their
assessinent of Mother's intoxication level higher than what the results of an alcohol monitoring
device may provide (which is then reinforced when Father comes to their “rescue”).
To be clear, the undersigned did not entirely dismiss thé concems of the children and
reasonably asked relevant questions of the children during the #7 camera interviews. However,
the overwhelming evidence of Father’s routine interference and alienating behavior necessitated
Placing a reduced weight on the ebidren’s “concerns and requests.”
Thus, the Court did not abuse its discretion by reducing the weight of the children’s
preferences and appropriately asked relevant questions during the ia camera interview based on
the undersigned’s many years of Family Court experience and training.
1X. The Trial Court's Credibility Determinations are Supported By the Record
In Father’s ninth error complained of, Father alleges that the trial Court abused its
discretion in making credibility determinations for Mother and Father that are not supported by
the record.
Just as the Superior Court found jn its Opinion on Father’s prior custody appeal m 2017,
*, knowledge gained by @ trial court in observing witnesses in a cusfody proceeding cannot
adequately be imparted to an appellate court by a printed reeord.”"¥ Specifically on issues
concerming credibifity and weight, the Superior Court defers to the trial court as they have had
8 See MAD v, LDF, supra, No. 3200 BDA 2017, citing Ketterer vy, Seifert, 902 A2d 533, 540 (Pa, Super. 2000}
{quoting Jackson y. Beck, $58 A.2d 1250, 1254 (Pa. Super. 2064)}.
-42-
2007-26322.0603 Opinion, Page ¢
the opportunity to observe the proceedings and demeanor of the witnesses.'/* The Superior
Court has reasoned that:
“The parties cannet dictate the amount of weight the trial court places on the
eviderice. Rather, the paramount concern of the trial court is the best interest of
the child, Appellate interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough, and we are unable io
find any abuse of discretion.”
‘Here, the undersigned has had the responsibility of handling the enormous number of
Court proceedings generated from this family over the past 6 years. This includes the following:
“Eigat and one half (84) days of protracted custody hearings (including two seis
of two individual in camera interviews), two (2) days of protracted support
hearings, four (4) PFA heatings, procesdings relating tc equitable distribution and
contempt issues and a day and a half of equitable distribution hearings (plus
numerous Short List proceedings related to all of the foregoing issues}. The two
(2) days of support proceedings in 2016 before the undersigned represented the
third round of protracted support hearings over the previous three (3) years (there
were & total of four (4) days of protracted hearings before two other Family Court
Judges).”
See August 9, 2021 Findings of Fact, Footnote 1,
Even to date, the parties are once again scheduled hefore the undersigned for another
protracted custody hearing on October 27, 2021 to address Fatber’s Answer and Counterclaim
filed on August 23, 2021 and Mother's Petition for Contempt filed on September 7, 2021,187
Notwithstanding the ongoing and never ending filings, the undersigned has had the better of 6
years of ongoing litigation to assess the parties’ credibility.
Furthermore, in the ourrent round subject to this appeal, the undersigned spent
considerable time making careful and thorough considerations in the best interest of the children
16 See id, citing AMLG.. It. ¥. EMG, 986 A.2d 1234, 1237 (Pa. Super. 2009),
i? Post-hearing, Father filed an Emergency Petition to Modify on June 6, 2021. Mother then filed an Emergency
Petition for Contempt on Ime 6, 2021 whan Father withheld the children. Mother ultimately withdrew her
Emergency Petition for conterupt, atter the undersigned directed the assistance of law enforcement, but not
before Father filed an Answer and Counterclaim for contempt on August 23, 2021, Father alse filed an
Emergency Petition for special relief on June 22, 202,
~3-
2007-263 22-0603 Opinion, Page 4
through four and a half (4%) days of protracted hearings, child interviews of both children,
seven (7) separate interim’ Orders and ultimately a twenty-nine (29) page Findings af Fact and an
eighteon (18) page final Order.
Thus, just as the Superior Court noted in its 2017 Cpinion, “appellate interference is
unwarranted if the trial court’s consideration of the best interest of the child was careful and
thorough." Heve, the trial’ has gone through extraordinary lengths to address this matter and
properly assess credibility throughout the many years of litigation.
Accordingly, the undersigned did not abuse Hs discretion in making its credibility
determinations.
x Father Has Continned to Engage in Alicnating Behavior Which the Undersigned
Predicted in its August 31, 2017 Findings of Fact
In Father's tenth error complained of, Father claims thet the trial court abused its
discretion by making Findings of Fact not supported by the record, inchiding the Finding that
Father engaged in conduct to alienate the children from Mother.
A trial Cowr’s finding on parental alienation shali not be disturbed when there is
evidence to support such a finding.''? The trial Court is within its authority to base its findings
on record evidence fhat overwhelmingly demonstrates a parent’s cootinued alienating beheviar
such thaf it has had a negative impact on the children. The Superior Court has recognized
supporting evidence for parent alienation. when the record is replete with supporting testituony
from treating professionais,!7!
Me See LED. v. MAD,, supra, at #3,
0% See ALB. vy. MDL, 239 A3d 142, 151 (Pa, Super, 2020},
0 See BLE, y. D.N., No. 1894 RDA 2013, 2014 WL 10997475, ai*7 (Pa. Super, Aprif 9, 2014),
121 See Fat
44.
2007-26322-0603 Opinian, Page ¢
in BLE. v. D.N., the mother raised issue with the court's findings with respect to Section
5328(a)(8): the attempt of a parent to turn the child against the other parent. The trial court:
found that the mother had not only attempted to do so, but had been successful in tuming the
children against the father.!" Testimony fromm Dr. Steven Cohen, who bad been appointed to
provide goal-oriented therapy for the family, provided that the mother had been very
uncooperative in scheduling therapy sessions and exhibited a fundamental difference in how the
parties should parent the children,’ Specifically, the mother betieved that the children should
decide what they want to do while the father believed that the parents should work together to
decide what was besi for the children."4 Furthermore, the mother had prevented the father from
properly exercising his custodial time such that the father had te negotiate his custody time on a
tonth to month basis. Utimately, the Superior Court upheld the tral courts findings in that it
was sot an abuse of discretion.
The Superior Court has also recognized support for the finding of parental alienation
when there is testimony that one parent speaks with the children about financial matters, as
leverage and. a means fo alienate the children from the other parent. In A.L.B. v. MDL, the
father took issue with the trial court’s ndings that he used his “financial stronghold on the
children and the mother io further alienate the children from the mother’"@ The court found
that the father, in sharing financial issues that were more proper topics for discussion between
the mother and the father, exhibited parental alienation and was clearly supported by record
122 See fd. at *6.
1 See id
A See fe.
WS See fd at *7.
8 See OLB. v. MDL, supra, at 147.
AS.
2007-26322-0603 Opinion, Page -
testimony. Thus, the Superior Court held that the father’s claim necessarily failed, as there was
Tecord support that the father was inappropriately sharing financial information to further
alienate the children, 1?
Here, the facts could not be any clearer that Father has exhibited behaviors in not only
aitempiing to, but in succeeding to alienate the children from Mother. Similar to BE. v. D.N.,
Father has actively obstructed the therapeutic process such that he bas allowed the children to
refuse attendance and advised them that they do not need therapy.’* As noted supra, the record
is filled with evidence of Father's interference with any therapeutic intervention for himself or
the children.'” Father's position has been to go so far as stating that all problems would stop for
the children once he is awarded sole legal and sole physical custady.'° Father believes that his
version of fhe children’s opinion of what they want should autweigh what Mother, or any
treating professional or even the Court believes would be best,!2!
Notwithstanding the extraordinary efforts that Father has gone to convince the children
that they can do what they want to do, at the pinnacle of Father’s alienation efforts remains that
he has successfully removed every single Court appointed professional to sclidify his total and
full control. ‘32
if that were not enough, Father routinely convinces the chifdren that thelr Mother is an
alcoholic by relying on their observations of what they helieve an intoxicated person locks
#F Sea fd at 151.
128 Seq Bxbibits “M-I", "M2", “W3"and “Col
See Section Vill, supra,
150 See Februsty 3, 2021 NOT et Pgs. 62: 66-69,
1 Sea June 9, 2021 NOT, Interview of Rs Dag at Pg, 17-19.
See Section VIII, supra.
Ab.
2007-76922-0603 Gpinton, Page ¢
like? As noted sypra, Father has essentially “enlisted” the children to monitor and “collect
evidence” of their Mother's behavior, sc that the instant they fee! that she is intoxicated, they can
notify Father to pick them up. femphasis added]
similar to A.L.D., Father also inappropriately shared financial information and the costs
of therapy, creating conflict within the children as to whether they should attend therapy or
not!4 Finally, Father has inappropriately shared Court documents and therapist progress
updates with the children to further alienate the children from Mother (and undernine
therag y). 35 Father effectively uses this information to pressure the children that what they told
therapists, in privafe sessions, were not “the truth.” It is this kind of behavior that the court has
recognized as efforts ta turn the children agsinst the other parent, such that the children cannot
trust anyone other than the alienator himself. As Father maintains through all of the proceedings
and has demonstrated by an inability to comply with Court Orders, he holds himself above all
others.
Thus, the Court did not abuse its discretion as the finding that Father alienated the
children from Mother in its Findings, was supported by the record.
XI, Father's Motion for Reconsideration was Without Legal or Factual Basis and Not
Reviewable for Appeal.
Tn Father’s eleventh error complained of, Father claims thai the trial court abused its
discretion in denying Father’s Motion for Reconsideration.
33 See Section V and VI, supra.
134 See May 17, 2021 NOT at Pg, 27; Sag Also Fiphibits “hen”
3) See Exhibit “C-9" and "C-11",
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2007-26322-0603 Opinion, Page 4
The Superior Court has held that an order denying reconsideration is unreviewable on
appeal."* Furthermore, there exists no abuse of discretion by the tial court in denying the
underlying Motion, when the trial court catefully considers the substance of the pleading. "7
First and foremost, Father’s Motion for Reconsideration is not reviewable on appeal and
showd be summarily rejected by the Superior Court.
However, for completeness, the trial cowt did carefully consider the underlying Motion
in, Limine (the subject of Father’s Motion for Reconsideration), even to the extent that Father’s
Motion in Limine was actually granied in yart., Father sought to introduce thousands of pages of
documents dating from before the parties February 24, 2020 Agreed Order. Much of Father’s
“evidence” was of questionable relevance as Father had not brought any of this evidence up prior
to enfering into the February 24, 2620 Agreed Order, Purthennore, the scheduling Judze had
already limited the introduction of Father’s evidence to post February 24, 2020.
Thus, the court did not abuse its discretion in only granting Father’s Motion in Limine in
part, and the Superior Court should dismiss Father's eleventh claim of error as not an issue
properly before the reviewing Court.
AW. Father’s Contempt was Done Volitionally and with Wrongful fntent as Exhibited by
his Continued Interference to Have the Children Reezive Professional Help
In Father’s twelfth enor complained of, Father claims that the trial Court abused its
discretion in finding Father In contempt of the June 8, 2020 Order, the February 24, 2620 Order
and the March 22, 2021 Order.
HS See Bollard & Associates. Ine. v, H &R Industries. Ino., 161 4.34254, 256 (Pa. Super. 2017), citing Huntington
Nat. Bank y. K-Car, ine., 107 A.3¢ 783, 787 (Pa. Super, 2014)
7 See Huntington Nat. v¥. K-Cor, Inc., 107 A.3d 783, 787 (Pa. Super, 2014),
-48-
2007-26322-0603 Opinion, Page é
Father's contemptuous behavior, as exhibited by his parental alienatlon efforts, were -
thoroughly addressed in Sections Vil and A, Supra, such that it should not be necessary to
repeat here again for the reader.
However, for completeness, the undersigned notes that, to be punished for contempt,
there must be a showing that: (1) the contermmor had notice of the specific order alleged to have
been violated; (2) the act was volitional; and (3) the contemaor acted with wrongful intent.9#
Finally, to be punished for contempt, the underlying Order that was violated must have been
“definite, clear and specific” so as to leave no doubt or uncertainty in the mind of the contemnor .
or the prohibited conduct.9"
When considering an appeal from an Order holding a party in contempt for failure to
comply with a custody order, the scope of review by the appellate court is narrow and will only
be zeversed upon a showing of abuse of disoretion.“? Abuse of discretion is found if the court
misapplies the law or exercises its discretion in a manner lacking reason.!' However, the
reviewing court must place great reliance on the sound discretion of the trial judge when
reviewing an order of contempt,'?
Here, the facts were clear from the testimony and evidence that Father’s acts were
volitional and done with wrongful intent. Futthermore, Father had notice of the clear and
specific language of Order, for the children to aftend therapy, so that there was no uncertainty on
8 See Lacahat, supra, at 489.
1S Sea Td
0 See Hopkins v. Byes, A.2d 654, 656 (Pa. Super 2008).
Mt Beeld
"2 See Lachat, supra at 4B7-B8.
-49.
2087-26322-0603 Gpinion, Page {
what needed to happen. ‘The June 8, 2020 Order even explicitly referenced the statute related
to custody contempt and possible sanctlons.'
As indicated, stra, the children’s therapist, Ms. Kershner, testified that the children
expressed a distrust with the therapist, refused to attend, and were most hesitant about therapy in
weeks following custody with Father.“" Furthermore, the evidence demonstrated that Father had
clearly interfered with therapy so pervasively that ail progress in the therapy sessions had
effectively come to a stop? The children were supplied with information from Father to lead
them to believe that they could no longer trast the therapist because she allegedly “hates her
dad.”
A strikingly identical situation was presented with Dr. Green during the trial jiself when
the children were attending therapy. Namely, the children were improving within therapy up and
until Father shared the progress updates with the children.'4? This ultimately led to the children
refusing attendance: being forced by Father to choose their allegiance to Father over what they
told their therapist." Father effectively destroyed therapeutic intervention by convincing the
children that what they hed said to the therapist could not have been true because it did not
comport with his perspective and agenda.
“i See Tons 8, 2020, February 24, 2020 and March 22, 2021 Orders, Hach Order outlines exactiy the kind of issues
that needed to be addressed and directing prompt comptiance,
i See June 8, 2020 Order, Section F,
MS See February 3, 2021 NOT at Pgs, 15-36.
46 See Exhibits “M-1" and “M-2".
MT See Exhibit *C-11”,
ial See fd.
50
2007-26322-0603 Opinion, Page £
At the pinnacle cf Father’s contempt, and further evidence thereof, is his belief that the
children wouldn’t need therapy if he was given full and complete contro).! Father has not been
supportive of the therapentic process because it is his helief that all therapists have lied, gotten it
WON, and. bas then convinced the children of the same." Therefore, it was not abuse of
discretion fo find father in contempt of the Orders as his actions demonstrated direst contempt of
the Court's Orders.
XU The Thorough findings of Fact Accompanying the August 10, 2021 Order Indicate
the Extensive Basis for Which the Undersigned Made his Decision
in Father's thirteenth error complained of, Father alleges that the court abused its
discretion in basing its decision upon il will and bias towards Father, rather than the best
interests of the children.
" For the sake of brevity, this issue was thoroughly addressed in Sections IV, VOI, IX, and
X, supra such that it should not he necessary to repeat again here for the reader.
Furthermore, the Court provided an extensive twenty-nine (29) page Findings of Fact,
which properly analyzed each of the Section 5328 custody factors to base its decision upon.
Merely disagreeing with the findings and opinion of the Court does not mean the decision
was based on il! will and bias. Thus, the trial court did not abuse its discretion by basing its
decision on the careful consideration of the Section 5328 custody factors and did not render Its
decision via bias and iil will as Father afleges.
49 See February 3, 2021 NOT at Pg.69.
i See Marek 15, 2021 NOT at Pe. 166-167,
5]-
2007-26322-0603 Opinion, Page £
ALY, Father's Legal Custody Was Properly Removed Again Due to His Continued
Interference with the Emotional and Physical Welfare of the Children
In his final claim of error, Father alleges that the trial court abused its discretion in.
granting Mother with sole legal custody.
Not only was this issue and the basis for such decision expressly addressed within the
Court's Findings of Fact, but it has also thoroughly heen addressed in the within Opinion in
Sections V, VI, VIE, [X, and X, supra such that it should not be necessary to repeat again here
for the reader,
However, for completeness, evidence of Father's interference wes undenable when he
sought to exclude Mother from treatment for Bap at CHOP, As noted supra, Ms, Kershner had
testified fo some of the behavioral issues that the children were facing prior to the hearing.
Despite recognizing the issues as an urgent problem, by the time the March 15" hearing
oceutred, the parents had stifl not reached a consensus on the selection of specialist to treat
children. Nevertheiess, Father testified that he went ahead and pursued treatment for Bggp at
CHOP to the exclusion of Mother despite the fact that joint legat custody was restored in the
Agreed Order of February 2020. Not only did Father not include Mother with the CHOP visits,
he specifically prevented her from providing any input to CHOP with regard to Bigie’s treatment,
The February 23, 2021 CHOP Questionnaire, Exhibit “M-9", eleven pages, was
completed by Father and spevifically excluded Mother and misled CHOP, Knowing full well
that there was an. Agreed Order for joint legal custody, entered barely a year prior, Father lied on
the Questionnaire, including ong of the Questions which asked the following:
“A child under 14 years of age must be accompanied by a legal guardian or the
accompanying parent must provide documentation of the legal guardian’s consent
to the evaluation, If there are other legal custody arrangements, please
~52 +
2007-26322-0603 Gpinian, Page £
provide legal documentation at your first visit or attach it to the end of this
questionnaire”.
Father responded: “Does not apply", [Emphasis added]
Further on the Questionnaire, Father trashes Mother with the following statements:
“in the past four years, therapy has been counterproductive and even destructive.
Biga's Mother, DP was providing false information to the child
therapists”,
“T have since learned that Bigi’s mother has a pattern of abusing aleohal,
prescription medications and pecreational drugs.
As if manipulating and misrepresentations to medical professionals is not enough,
Father’s approach to joint legal custody can best be summarized by his emaif te Mother of
January 5, 2021, submitted as Exhibit “M-7”, as follows!
“Please confirm by 12p tomorrow that you will no lenger actively participate in
any medical specialist visit for the girls Ge: OCD, tics, cating, sexual, etc.),
indefinitely, otherwise I will contact CHOP legal department and advise that they
do not have my consent for you to schedule of attend any appointment within. the
CHOP network. If 1 don’t get the confirmation from you, I’ll do the same with
UPenn.”
The emaif was thoroughly addressed at the March 15 hearing:
THE COURT: I entered an Order in 2017 providing her jt with sole
iegal custody for medical because of all the, for lack of a better word ---I'IL
borrow Joanna’s for a minute —-bickering with medical professionals, And then
dast year that was reinstated for you, And so, not even s year later we're back to
the bickeriug with medical professionals, and we're back to I think an
inappropriate statement on your part that she agree to your demands that she not
participate or you'll withhold consent for the child to get treatment, [ mean is this
a parent getting ao “A"? I don’t see that, You need to really try to explain why
you would threaten Ma@@a@f that she not participate in her child’s health
appointment and that, secondarily, if she refused to, even though she has joint
legal custady [and primary physical custody} you would withhold trestment.
Whose interests are being put firet here: Your daughters or you?
MR pee: Let me answer those in reverse, I never withheld treatment.
THE COURT: Ym just mystified, I guess, that’s the best word, maybe
flabbergasted. I don’t know, that after four years or maybe thres of having given
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2007-26322-0603 Opinion, Page 5-
Maia sole legal custody for medical, basically within a year of getting it back,
you're sending an email like this, which I would call a “slash and barn” email
with quotes around it Joanna didn’t but ] will — that’s a “slash and burn” email...
your way fo co-parent is to demand that she not participate, and if she doesn’t
[agree], you withhold consent, J don't understand that.
MR. DARI: Right. And yeu're not going to understand it without a lot more
information to be presented.
THE COURT: Look we created a format for your daughter through the therapy.
You made sure that didn’t happen. You didn’t like the therapist. You didn’t like
what they were saying and now we're moving over into the medical realm, and
probably the same thing is going to happen again, Do you really believe that
Mégjig@ as the mother of your daughter should have no input with the medical
professionals? Even you had input when M@§Mg hed primary [legal] custody.
Even you had input. You're saying she shouldn’t have any,
MR. Dag: That's arguable, but T don’t want to go down that path zight now.
See March 15, 2021 NOT Pgs, 179-185
The most recent impasse over the selection of specialists, and Father's unilateral actions,
led to the entry of a six (6) page Memorandum and Order on March 22, 2021 in which the
undersigned proceeded to appoint professionals. An additional five (4) page Order was also
entered on March 22, 2021 replacing the children's Court appointed therapist Kristine Kershner
with Dr. Heather Green!
Thus, teal court did not abuse its discretion in pranting Mother sole legal custody of the
children.
1S! Section Sf. of the March 22™ Ordor pertaining to Dr. Green specifically provided as follows: “he sessions are
not optional to ihe children. The parents are accountable ia the Court for the refusal by either child to
cooperate and partteipate, The Court reserves the right te impose sanctions prompily In the eveut either parent
ds vot able to ensure compliance with this provision.”
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2007-26322-0603 Opinion, Page !
CONCLUSION
For the reasons set forth above, this Court respectfully requests the Court Order of
August 10, 2021 be affirmed.
BY THE COURT:
Copiss sent via Prothonotary to:
Jali F, Dal, Fra Se
Joanna M, Furia, Esquire
Tt
Copies sent via Chambers to:
Court Administration — Family (Aueroffice)
4 icial Assistant
5h