J-A35014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.P.W., JR., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.N.H.,
Appellant No. 646 WDA 2014
Appeal from the Order Entered March 25, 2014
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2010-10883
BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 14, 2015
A.N.H. (Mother) appeals from the custody order entered March 25,
2014, following a trial de novo, which granted J.P.W., Jr. (Father) sole legal
custody and primary physical custody of their child, A.J.W. (Child) (born in
November 2010). We affirm.
Father filed a complaint seeking custody of Child in December 2010.
Thereafter, the trial court entered preliminary orders in January and March
2011, granting primary physical custody of Child to Mother. Mother filed a
request for trial de novo, and this contentious litigation continued through
2011 and 2012, including numerous petitions for contempt brought by
Father and several requests for continuance filed by the parties.
Trial de novo commenced in February 2013. Following a lengthy
continuance to permit Mother an opportunity to obtain a second custody
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evaluation, additional trial testimony was heard in August 2013 and March
2014.1 The trial court issued factual findings, based upon its consideration
of the factors enumerated in the Custody Act, 23 Pa. C.S.A. § 5328(a), and
a final custody order. We adopt the following statement of its findings:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
Father is clearly more likely to encourage, permit and promote
frequent and continuing contact between [Child] and [Mother].
Father testified that he keeps a photograph of Mother and her
other children in [Child’s] bedroom in his home. Father
encourages [Child] to maintain a connection with [Mother] and
his step-siblings. On the other hand, there was no testimony
from Mother that she reciprocated in this regard. In fact, the
testimony indicated that Mother discouraged any connection
[between] [Child] and Father, e.g. removing personal items from
[Child] such as an article of clothing or his blanket, immediately
upon his return to her home.
(2) The present and past abuse committed by a party or
member of the party’s household, 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.
Mother had filed a PFA petition against her estranged husband,
[J.H.], on January 7, 2009, during the course of their
contentious divorce. The [c]ourt ultimately denied Mother’s
request for relief under the Protection from Abuse Act on January
16, 2009. Although Mother claims [that] she and [J.H.] have
reunited, they admittedly maintain separate homes, so he is not
a fulltime member of Mother’s household. However, according
to Mother, [J.H.] spends significant time in Mother’s home.
While the [c]ourt does not find credible Mother’s claim that her
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1
In total, there have been three custody evaluations in this case: two
performed by Dr. William Bush and one by Dr. Eric Bernstein.
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decision to file a PFA against [J.H.] was driven by Father,
currently there seems to be peace in Mother’s household, even
when [J.H.] is present.
There are no such issues in Father’s household.
(3) The parental duties performed by each party on behalf
of the child.
Both parents have been performing the necessary parental
duties for [Child]. Although both parents sling some mud at
each other pursuant to their acrimony, both Mother and Father
are attentive to [Child’s] needs.
(4) The need for stability and continuity in [Child’s]
education, family life and community life.
Father presents a more stable force in this regard than Mother.
Although both parties have had prior relationships, Mother’s “on
again off again relationship” with her estranged husband, before
and after her relationship with Father, has to be confusing to
[Child] and her other children. In addition, in light of the other
findings set forth herein, the [t]rial [c]ourt found Father to
represent more stability and continuity for [Child’s] education
and family and community life.
(5) The availability of extended family.
Father shares a home with his mother, and has a good
relationship with his sister. Both paternal relatives have a
relationship with [Child] and are committed to his best interests.
Mother offered no testimony of extended family relationships
other than her estranged husband and her other minor children.
(6) The child’s sibling relationships.
It seems clear that [Child] has a close relationship with his half
siblings, Mother’s children from two prior relationships, who are
ages 23, 15 and 10 years old. The 15[-]year[-]old, J.H.[,] and
the 10[-]year[-]old, L.H.[,] both live with Mother, and it is
apparent that [Child] has a good relationship with both of them
and enjoys their company. [Child] also has a relationship with
Father’s adult son[;] however his paternal half-brother lives on
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the west coast of the country so their opportunities to spend
time together are very limited.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
Since [Child] just turned three[-]years[-]old on November 3rd of
[2013], he is not in a position to express his well-reasoned
preference.
(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.
As set forth above, there is no evidence that domestic violence is
an issue currently in the household of either parent. There was
no direct evidence presented that either party attempts to turn
[Child] against the other parent[;] however, several of Mother’s
behaviors would suggest that this is her intention. Mother
refused to give [Child] Father’s last name, and continues to
vehemently contest Father’s legal action to change [Child’s] last
name. Mother immediately removes any article of clothing or
any other item which [Child] may bring from Father’s home.
Mother schedules medical and therapy appointments for [Child]
without notice to Father and attempts to exclude Father from
important events in [Child’s] life. Father, on the other hand,
expressed the importance of maintaining [Child’s] connection
with each parent’s home, “two homes, one life,” and testified of
having a photograph of Mother and her family in [Child’s]
bedroom and described other ways for [Child] to “maintain a
connection with both homes.” Mother offered no such
testimony.
(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.
Both parties are capable of maintaining a loving and nurturing
relationship with [Child] adequate for [Child’s] emotional needs.
Father’s home life is more consistent and stable than Mother’s,
and the scales tip in his favor, in this regard. As noted above,
Mother has some kind of “on again, off again” relationship with
her estranged husband, which demonstrates neither stability nor
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consistency, and which undoubtedly causes confusion for [Child]
and his step-siblings. Mother refuses to accept that [Child]
needs to have a close relationship with [Father], and feels that
[Child’s] relationship with her other children and her estranged
husband is more important.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
Both parties are capable of taking care of [Child’s] daily physical
and emotional needs. Mother continues to claim that [Child] has
special needs, particularly “autistic features,” and that [Child]
has developmental delays, although the medical and behavioral
evidence shows the contrary. Father is more in tune to [Child’s]
educational needs, and is already researching preschool and
kindergarten providers. Mother refuses to accept the provider’s
reports that [Child] is no longer developmentally delayed.
(11) The proximity of the residences of the parties.
The parties reside within a few miles of each other so that
proximity of their residences is close and is not an issue.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements when
necessary.
The parties have been sharing custody of [Child] on nearly an
equal rotation since February of 2013. Both parents are
available to care for [Child] and have been able to make child-
care arrangements when necessary.
(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.
There is a great deal of conflict between the parties, which
interferes significantly with their ability to co-parent [Child], and
which is deleterious to [Child’s] best interests. The conflict is
painfully obvious to the [c]ourt[,] which must unfold these issues
over the protracted proceedings in the custody matter, in
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addition to the name change litigation, which is currently on
appeal. As set forth above, Mother refused to give [Child]
Father’s last name, but choose [sic] instead the [sur-]name of
her estranged husband, with whom she had a bitter divorce and
proceedings under the Protection from Abuse Act. When Mother
requested a continuance of the custody proceedings after the
first day of hearings, so that Mother could secure a new custody
evaluation, the [c]ourt entered a temporary order in accordance
with the proposal the parties were discussing. From this
temporary interim order, Mother filed an appeal to the Superior
Court[,] which was later quashed. After Mother’s custody
evaluator, Dr. Bernstein recommended an equal shared custody
schedule, Mother refused to consider the recommendation and
proceeded with three additional days of hearings.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
There was no credible evidence that either party has a history of
drug or alcohol abuse, or that any member of either household
has such an issue. Mother made great efforts to attempt to
portray Father as having a problem with alcohol abuse[;]
however the [c]ourt did not find her testimony credible.
(15) The mental and physical condition of a party or
member of a party’s household.
There are no obvious mental or physical conditions of either
parent which were presented to the [c]ourt[;] however, Mother’s
behavior, as set forth herein, calls into question Mother’s mental
fitness to be an appropriate parent for [Child].
(16) Any other relevant factor.
Mother’s inability to cooperate with Father, on even the most
basic level, is the source of much of the parties[’] conflict and
their resulting “stale mate” in their ability to co-parent. Dr.
Bernstein testified that after having been involved with over 600
custody cases over the years, he would rate these parties in the
“top two” of high conflict parents. Dr. Bernstein recommended
that the parties engage in co-parenting counseling with a
counselor experienced with high conflict cases. Dr. Bush also
recognized the significant acrimony between the parties and
recommended that the parties complete a course of co-parenting
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in order to facilitate a shared custody schedule. While co-
parenting education would be helpful if the parties sincerely
participated in the same, the [c]ourt does not feel that it would
be productive to compel the parties to complete such counseling.
Perhaps one day the parties will recognize the benefit of working
together and agree to engage in co-parenting counseling on their
own, without being court-ordered to do so.
Opinion & Order, 3/25/2014, at 4-10 (footnotes omitted).
The court awarded sole legal custody and, following a transitional
period leading to Child’s placement in school, primary physical custody to
Father. Mother timely appealed and filed a court-ordered Pa. R.A.P. 1925(a)
statement. The trial court filed a responsive opinion.
Mother raises the following issues on appeal:
[1.] Whether the trial court committed an abuse of discretion in
failing to recuse itself when [Mother] demonstrated that there
were factors and circumstances that questioned the Judge’s
impartiality in the custody matter and when the trial court failed
to demonstrate impartiality.
[2.] Whether the trial court erred in awarding Father primary
custody when [Child] began preschool when the court found that
the great majority of the custody factors under Section 5328
were equal but found against the weight of the evidence that
Mother’s home was less stable, that Mother was frustrating
Father’s relationship with [Child], that Mother was the source of
acrimony between the parties, and the court did not consider
[Child’s] relationship with his siblings and the effect of limiting
[Child’s] contact with them.
[3.] Whether the trial court committed an abuse of discretion in
awarding the parties shared physical custody until [Child] began
preschool, but then awarded Father primary physical custody
thereafter.
[4.] Whether the trial court committed an abuse of discretion in
awarding Father sole legal custody when the facts of record
demonstrated that Father failed to act in [Child’s] best interest in
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obtaining medical treatment, including evaluations for potential
behavior and cognitive delays.
[5.] Whether the trial court committed an abuse of discretion
when ordering the parties to cooperate with [Child’s] religious
training[.]
[6.] Whether the trial court committed an abuse of discretion
when it ordered that the parties use Skype, FaceTime or other
technology regarding the availability of the technology to the
parties or the parties’ ability to comply.
Mother’s Brief, at 21-23.
First, Mother contends that the trial judge, the Honorable John F.
DiSalle, should have recused.2 We review a trial court’s denial of a motion
to recuse for an abuse of discretion. In re A.D., 93 A.3d 888, 892 (Pa.
Super. 2014) (citing Vargo v. Schwartz, 940 A.2d 459, 471 (Pa. Super.
2007)). “Indeed, our review of a trial court's denial of a motion to recuse is
exceptionally deferential.” Id.
It is beyond dispute that a party to an action has the right to
request the recusal of a jurist where that party has a reason to
question the impartiality of the jurist in the cause before the
court. However, a mere recitation of unfavorable rulings against
an attorney does not satisfy the burden of proving judicial bias,
prejudice or unfairness. Moreover, a party seeking recusal or
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2
Father contends that the trial court’s order denying Mother’s motion to
recuse, entered January 31, 2013, constituted a final order and that her
failure to appeal timely from the order results in waiver. Father is incorrect.
See In re Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa. Super. 2012)
(“[A]n order on a motion for recusal is an interlocutory order for purposes of
an appeal.”) (citing Rohm and Haas Co. v. Lin, 992 A.2d 132, 149 (Pa.
Super. 2010)); Krieg v. Krieg, 743 A.2d 509, 511 (Pa. Super. 1999). Thus,
Mother properly appeals from the final custody order entered March 25,
2014.
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disqualification must raise the objection at the earliest possible
moment, or that party will suffer the consequence of being time
barred.
Ware v. U.S. Fidelity & Guar. Co., 577 A.2d 902, 905 (Pa. Super. 1990)
(internal quotations and citations omitted).
According to Mother, Judge DiSalle failed to demonstrate impartiality
when he scheduled and conducted a hearing on Father’s petition to change
Child’s surname. The hearing occurred on September 7, 2012. It appears
from the record that Judge DiSalle convened the hearing on short notice
when counsel for Mother complained that delaying the hearing until the trial
de novo, as originally agreed, would be inappropriate under the rules.
Thereafter, during the hearing, Judge DiSalle questioned Mother and Father
regarding two previous court actions, over which he had presided, involving
Mother, Father, and Mother’s estranged husband, J.H.
Initially, we observe that Mother did not file her motion to recuse until
January 31, 2013, more than four months after the name change hearing
occurred. In our view, Mother waited too long to seek recusal. Further, it is
not at all clear why Mother disputes the scheduling of the hearing or the
manner in which Judge DiSalle conducted it. Indeed, Mother has previously
acknowledged that any procedural issues regarding scheduling were easily
addressed and would not affect the merits of Father’s motion. See Motion to
Recuse, Exhibits A & B. Finally, Judge DiSalle’s questions referencing related
matters involving the parties revealed no partiality, nor did Mother object at
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the time. See Jones v. Jones, 884 A.2d 915 916 (Pa. Super. 2005) (“It is
clear that when making a decision as to the current best interests of the
children, the trial judge can consider the history of the parties.”) (citing
Snarski v. Krincek, 538 A.2d 1348, 1359 (Pa. Super. 1988)). Accordingly,
we discern no abuse of the court’s discretion.3
In her second, third, fourth, and sixth issues, Mother challenges the
trial court’s findings as against the weight of the evidence or without
evidentiary support in the record. The scope and standard of our review is
settled:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court's
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court's conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
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3
In her brief, Mother also raises several claims of purportedly impartial
rulings that occurred during the trial de novo. See generally Mother’s Brief
at 38-48 (discussing unfavorable evidentiary rulings of the court, as well as
disputing the impartiality of the court’s findings of fact and legal
conclusions). However, Mother failed to renew her motion to recuse
contemporaneous with these rulings. As a basis for recusal, Mother raises
them for the first time on appeal. Thus, we deem them waived. Ware, 577
A.2d at 905 (“A party seeking recusal must assert specific grounds in
support of the recusal motion before the trial judge has issued a ruling on
the substantive matter before him or her.”) (emphasis added).
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or are unreasonable in light of the sustainable findings of the
trial court.
D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (quoting J.R.M. v.
J.E.A., 33 A.3d 647, 650) (Pa. Super. 2011)).
Following trial, the court issued detailed factual findings. See Opinion
& Order, 3/25/2014, at 4-10; see also Opinion, 8/20/2014, at 17-23; see
supra at 2-7 (adopting the trial court’s findings for appellate purposes). We
have reviewed the findings and conclude that they are supported by
competent evidence of record.
Conversely, Mother’s specific assertions of error are without merit. For
example, Mother complains that there was no evidence to support awarding
Father primary physical custody when Child began attending school. The
record belies this assertion. See Notes of Testimony (N.T.), 3/14/2014, at
118. Indeed, Mother acknowledged such evidence in her appellate brief.
See Mother’s Brief, at 51 (“Finally, when asked by the [c]ourt about
potentially changing the schedule from 5-2-2-5 when [Child] starts
preschool or kindergarten, Dr. Bernstein, indicated that that might be a time
to adjust the schedule.”).
Similarly, Mother suggests there was no evidence that she had access
to video communication technology, such as Skype or FaceTime. Therefore,
according to Mother, it was error to direct the parties to communicate using
such technology. This assertion is devoid of merit. First, the order of court
provided that Mother “shall have phone or video contact with [Child,] and
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that “the party out of custody shall select the method of contact[.]” See
Opinion & Order, at 11-12 (emphasis added). Thus, Mother need not rely on
video technology to communicate with Child. Second, the evidence
suggested that Mother’s other minor children were enrolled in “cyber
school.” See N.T., 8/27/2013, at 39. Thus, Mother may have access to
video communication technology.4
Finally, regarding Mother’s concerns that Child exhibits developmental
delays, or perhaps suffers from autism, we observe that the evidence of
record indicates Child functions within the normal range for his age. See
N.T., 3/12/2014, at 92. Accordingly, Mother’s evidentiary claims are without
merit.
In her fifth issue, Mother challenges a provision of the custody order
directing the parties to cooperate in providing Child with religious education.
Mother asserts that a court may not interfere with the religious preferences
of a parent, citing in support Frank v. Frank, 833 A.2d 194, 199 (Pa.
Super. 2003). We discern no evidence suggesting the trial court has done
so. To the extent Mother complains that religious activities organized by
Father may interfere with Mother’s custody time, we observe that Father is
permitted to enroll Child “in a reasonable number of activities” that may
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4
We note that Mother does not assert that she is without access to such
technology.
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involve or overlap custody time. Moreover, Mother is expressly permitted to
attend such activities. We deem this issue to be without merit.
Also before this Court is Mother’s petition for writ of mandamus, in
which Mother claims the trial court modified the final custody order without
jurisdiction to do so, as Mother’s appeal was pending in this Court. See
Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these rules, after an
appeal is taken or review of a quasijudicial order is sought, the trial court or
other government unit may no longer proceed further in the matter.”). On
September 17, 2014, in response to Father’s petition for special relief, the
trial court issued an order clarifying its final custody order and scheduling a
hearing to determine the cause of Mother’s alleged noncompliance with said
order. Thus, Mother’s claim is without merit, and we deny her petition for
writ of mandamus. See Glynn v. Glynn, 789 A.2d 242, 246 n.4 (Pa. Super.
2001) (noting that, absent supersedeas, a trial court retains its power to
enforce orders, despite an appeal therefrom).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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