C.M.M. v. D.R.M.

J-A26026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.M.M., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

D.R.M.,

Appellee No. 544 MDA 2014

Appeal from the Order entered February 28, 2014,
in the Court of Common Pleas of Franklin County,
Civil Division, at No(s): FR 2011-579

BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY MUNDY, J.: FILED JANUARY 23, 2015

Appellant, C.M.M. (Mother) appeals from the February 28, 2014 order

granting the petition for modification of the existing custody order filed by

Appellee, D.R.M. (Father). Upon careful review, we affirm.

In its opinion accompanying the subject order, the trial court aptly set

forth the facts in this case, which we adopt herein. See Trial Court Opinion,

2/28/14, at 1-2.1 We summarize the factual and procedural history relevant

to this disposition as follows. Mother and Father have three children born

from their marriage, a son, L.L.M., born in March 2004, and two daughters,

B.M.M., born in May 2005, and J.R.M., born in July 2006 (collectively, the

1
We note that on April 15, 2014, the trial court subsequently filed an
opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). In
said opinion, the trial court adopted its February 28, 2014 opinion, and
attached it for reference. In its 1925(a) opinion the trial court addressed
Mother’s specific issues raised on appeal.
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Children). The parties separated in January of 2011.2 By an agreed-upon

order dated April 28, 2011, the parties were granted shared legal custody.

The custody order granted primary physical custody to Mother, and granted

Father partial physical custody every Wednesday and Thursday from 9:00

a.m. until 7:00 p.m. each day, and on alternating consecutive Fridays,

Saturdays, and Sundays, from 9:00 a.m. until 7:00 p.m. each day.

On July 30, 2013, Father filed a pro se petition for modification of the

existing custody order. Following a custody conciliation conference, on

October 4, 2013, the trial court modified the existing custody schedule by

order, granting Saturday overnights to Father during his alternating

custodial weekends. On October 11, 2013, Father filed a motion for a pre-

trial conference. The trial court scheduled the pre-trial conference for

December 4, 2013, and directed the parties to submit a pre-trial conference

memorandum at least five days prior to the pre-trial conference. Trial Court

Order, 10/23/13. Father and Mother filed their pre-trial conference

memoranda on November 25, 2013, and December 2, 2013, respectively.

By order dated December 5, 2013, the court scheduled the custody trial for

February 17, 2014. Thereafter, on January 3, 2014, Mother filed an

amended request for relief wherein she requested that Father be granted

supervised partial physical custody.

2
At the time of the subject proceeding, the parties’ divorce remained
pending. N.T., 2/17/14, at 5.
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In addition to Mother and Father, the trial court heard testimony from

eleven witnesses during the custody trial. The testimonial evidence revealed

that Mother and Father live one mile apart, and the Children’s school is

located between the parties’ homes. N.T., 2/17/14, at 25. Mother resides

with her paramour, R.K.,3 whose five-year-old daughter stays with them on

Sundays and Mondays. Id. at 62. Father resides with his paramour, E.D.,

who does not have any children. The trial court interviewed the Children in

camera separately, who were then ages nine, eight, and seven. Each of the

Children testified that they would like to spend overnights with Father on his

custodial days. Id. at 243-244, 255-256, 268.

On February 28, 2014, the trial court granted the parties shared legal

and physical custody according to the following arrangement. Mother shall

have the Children every Monday at 9:00 a.m. through Wednesday at 9:00

a.m. and every other weekend from Friday at 9:00 a.m., through Monday at

9:00 a.m. Father shall have the Children every Wednesday at 9:00 a.m.

through Friday at 9:00 a.m. and every other weekend from Friday at 9:00

a.m., through Monday at 9:00 a.m. The trial court also set forth a holiday

custody schedule.

On March 26, 2014, Mother filed a notice of appeal. The following day,

on March 27, 2014, the trial court directed Mother to file, within ten days, a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

3
R.K. is referred to in the notes of testimony as “RJ,” the name he uses.
N.T., 2/17/14, at 74, 118.
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1925(a)(2)(i) and (b). Mother filed the concise statement the same date.

Because Mother timely complied with the court order, we will review her

issues on appeal. Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010)

(stating that, where the appellant not only failed to simultaneously file a

concise statement with her notice of appeal, but also failed to comply with

the trial court’s order to file a concise statement within 21 days, she waived

her issues on appeal). On April 15, 2014, the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

On appeal, Mother presents the following issues for our review.

1. Did the [trial c]ourt fail to follow the “best-
interests of the child[ren]” doctrine, and ignore the
recognition that “the removal of children from their
environment is a factor which bears on their
emotional well-being” when the prevailing Order was
long-standing and unquestionably successful?

2. Did the [trial c]ourt’s opinion improperly criticize
[Mother] for having long work hours which cause her
to be away from her children, while the [trial c]ourt
failed to recognize that this issue is a direct result of
[Father]’s unwillingness to work to his capabilities,
and that Father also has a work schedule that is less
than ideal, which he has the ability to change but
chooses not to? Did not the [trial c]ourt’s Order also
fail to place the children with an available parent,
despite the fact that the [trial c]ourt claims it does?

3. Did the [trial c]ourt fail to give proper
consideration to [Father]’s sexual deviancy, and
inability to provide the [C]hildren with the protection
they deserve and, to the contrary award [Father]
more time with the [C]hildren instead of supervising
his unfettered access to three vulnerable minors?

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4. Did the [trial c]ourt err by ignoring undisputed
evidence presented as to [Father]’s real demeanor,
where the [trial c]ourt heard four recordings in which
[Father] engaged in a profanity laden tirade against
the [Children’s maternal grandmother]? Did the
[trial c]ourt fail to properly consider the effect on the
[C]hildren placing them in a home with a person who
obviously suffers from mood disorders, anger issues
and the inability to handle matters that concern him
in an appropriate manner?

5. Did the [trial c]ourt wrongfully prohibit [Mother]
from bringing into evidence, the testimony that
would have shown that [Father] has been seen in
possession of alcohol while with the [C]hildren,
especially since same is an enumerated factor
pursuant to 23 Pa.C.S. [§] 5328?

Mother’s Brief at 5-6.4

The scope and standard of review in custody matters is as follows.

[T]he appellate court is not bound by the
deductions or inferences made by the trial
court from its findings of fact, nor must the
reviewing court accept a finding that has no
competent evidence to support it…. However,
this broad scope of review does not vest in the
reviewing court the duty or the privilege of
making its own independent determination….
Thus, an appellate court is empowered to
determine whether the trial court’s
incontrovertible factual findings support its
factual conclusions, but it may not interfere
with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.

R.M.G., Jr. v. F.M.G.,986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 775 A.2d
835, 838 (Pa. Super. 2001)). Moreover,

4
We have re-ordered Mother’s issues for ease of disposition.
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[O]n issues of credibility and weight of the
evidence, we defer to the findings of the trial
[court] who has had the opportunity to
observe the proceedings and demeanor of the
witnesses.

The parties cannot dictate the amount of
weight the trial court places on evidence.
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 to find any abuse of discretion.

R.M.G., Jr., supra at 1237 (internal citations
omitted). The test is whether the evidence of record
supports the trial court’s conclusions. Ketterer v.
Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

The primary concern in any custody case is the best interests of the

child. Id. “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being.” Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d

674, 677 (Pa. Super. 2004).

Because the hearing in this matter was held on February 17, 2014, the

Child Custody Act (Act), 23 Pa.C.S. §§ 5321-5340, is applicable. See C.R.F.

v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the custody

evidentiary proceeding commences on or after the effective date of the Act,

i.e., January 24, 2011, the provisions of the Act apply). Section 5328 of the

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Act sets forth certain factors a trial court must consider in order to

determine the best interest of the child when awarding custody. Specifically,

Section 5328 provides as follows.

§ 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 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.

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(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.

(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).

This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a

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custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original).

Section 5323(d) provides that a trial court “shall
delineate the reasons for its decision on the record in
open court or in a written opinion or order.” 23
Pa.C.S.A. § 5323(d). Additionally, “section 5323(d)
requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must
file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
(Pa. 2013).

A.V., supra at 822-823. Instantly, the trial court set forth a detailed and

comprehensive analysis of each custody factor of Section 5328(a) in its

February 28, 2014 opinion accompanying the subject order, which we have

carefully reviewed in light of Mother’s issues on appeal. See Trial Court

Opinion, 2/28/14, at 3-11.

In her first issue, Mother argues the evidence does not support the

custody order because she has been the Children’s primary caretaker since

the parties’ separation in January of 2011, and the Children are thriving.

Mother’s Brief at 9-10. As such, Mother contends that the shared physical

custody arrangement poses a detriment to the Children’s emotional well-

being.

In its Rule 1925(a) opinion, the trial court rejected Mother’s argument

by stating that the Children “spent a significant amount of time (other than

overnights) in Father’s custody.” Trial Court Opinion, 4/15/14, at 6. The

trial court further reasoned as follows.

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The evidence suggested that Father was an active
participant in all aspects of the [C]hildren’s lives. In
addition, because of Mother’s work schedule, the
[C]hildren spent a considerable amount of time with
caregivers other than Mother. Because the
[C]hildren were used to spending significant periods
of time in their father’s custody, as well as with other
caregivers, it is difficult to see how the Court’s
decision disrupts the status quo to the [C]hildren’s
detriment.

Id. Upon review, we discern no abuse of discretion by the trial court.

Since April of 2011, Father has exercised partial custody every

Wednesday and Thursday from 9:00 a.m. until 7:00 p.m. both days, and on

alternating consecutive Fridays, Saturdays, and Sundays, from 9:00 a.m.

until 7:00 p.m. each day. Thus, although the Children did not spend

overnights with Father until October of 2013, the record evidence supports

the trial court’s finding that the Children are used to spending a significant

amount of time with him.

Further, the record supports the trial court’s finding that Father is an

active participant in all aspects of the Children’s lives. Father testified he

has been very involved with the Children’s school experience, including

accompanying them on field trips and volunteering in different capacities at

their school. N.T., 2/17/14, at 9-10. In fact, Father testified he currently is

the vice-president of the Parent Teacher Organization (PTO). Id. at 9.

Father testified he assists the Children with their homework during his

custodial time. Id. at 10-11. Additionally, Father testified that L.L.M. and

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B.M.M. participate on a swim team, and he attends 90 percent of their swim

meets. Id. at 12-13.

The testimonial evidence also supports the trial court’s finding that the

Children spend a significant amount of time with caregivers due to Mother’s

work schedule. Mother testified she is employed as a senior manager with

Outback Steak House in Hagerstown, Maryland, and she works 55 hours per

week. Id. at 62, 71, 106. Mother testified that, on Wednesday through

Friday, she reports to work anytime from 1:00 p.m. to 3:00 p.m., and she is

there until “either 10:00 p.m. or about 1:00 a.m.” Id. at 73. On the

weekends that the Children are in her custody, Mother testified she reports

for work at 3:00 p.m. and arrives home “around 1:00 or 2:00 a.m.” Id.

Mother has off from work on Mondays and Tuesdays. Id. at 78-79. Mother

testified she takes the Children to school every day. Id. at 78. With respect

to the afternoons when Mother is at work, the Children are either in Father’s

custody after school until 7:00 p.m., when they return to Mother’s home,

and her paramour, R.K., puts them to bed, or, on alternating Fridays, they

return to Mother’s home where R.K. meets their needs. Id. at 79-80. In

addition, Mother testified that, for childcare, she relies mostly on her sister-

in-law, the mother of her sister-in-law, and her nieces. Id. at 81-82.

R.K. testified that he is an assistant manager at Game Stop and that

he works Tuesdays through Saturdays from 9:00 a.m. to 5:00 p.m. Id. at

118-119. R.K. testified that when both he and Mother are working, “we

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have one of the [Children’s] cousins[5] come over and babysit….” Id. at 125.

Based on the foregoing, we conclude that the trial court’s factual findings

support its conclusion that a shared physical custody award will not pose a

detriment to the Children’s best interests because the Children spend a

significant amount of time with caregivers when they are not with Father.

As such, Mother’s first issue fails.

Mother argues in her second issue that the trial court erred to the

extent it based its custody decision on attempting to place the Children with

Father when Mother is at work. Mother’s Brief at 17. Specifically, Mother

asserts that, under the subject order, the Children will spend time in the

care solely of E.D., Father’s paramour, due to his work schedule, and that

the trial court should have tailored a partial custody award for Father that

considered his work schedule. Id. Further, Mother asserts the trial court

erred to the extent it fashioned a custody order that penalized her for her

work schedule. Id.

The trial court responded to Mother’s assertions in its Rule 1925(a)

opinion, in part, as follows.

This Court did consider Mother’s employment as it
related to the stability of the [C]hildren. When the
[C]hildren were interviewed in camera, they all
expressed their desire to spend more time with their
father. The [C]hildren also expressed their sadness
that Mother was not able to be home with them
more because of her work commitments. The Court

5
The Children’s cousins who provide childcare are A.J. and T.J., who are
Mother’s nieces.
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sought, not to punish Mother for her long work hours
and dedication to her employer and her family’s
financial stability, but to place the [C]hildren with an
available parent when Mother must be at work,
rather than with other caregivers.

Trial Court Opinion, 4/15/14, at 11. We discern no abuse of discretion by

the trial court.

Father testified he works 30 to 36 hours per week at a liquor store,

Village Spirits, which is ten minutes from his home. N.T., 2/17/14, at 11-12,

47. On cross-examination, Father testified he works on Tuesdays and

Thursdays and that he leaves for work at 3:45 p.m., and he returns home at

10:00 p.m. Id. at 52-53. Father also testified he works in the evenings on

Saturdays and Sundays. Id. at 51. However, Father testified that his

“schedule sort of revolves around the kids, you know, if I need a day off I

take a day off. If I need to go on a [school] field trip, I take time to go on

[a] field trip. If I need to be at a swim meet, I take time off for the swim

meet.” Id. at 12. With respect to E.D., Father’s paramour, she testified she

works at the YMCA in the before and after school program. Id. at 135.

E.D.’s job at the YMCA also includes assisting with the swim meets and swim

practices participated in by L.M.M. and B.M.M. Id. Father testified he would

not need childcare based on his and E.D.’s work schedules. Id. at 23.

During his in camera interview, L.L.M., then age nine, testified that

R.K., Mother’s paramour, “is not [home] a lot either, so, we’re usually

babysat” when Mother is at work. Id. at 238. L.L.M. testified they are

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babysat by “[a]nybody who’s really available, I mean, babys[a]t by our

cousins, or R.[K.]’s sister.” Id. He continued upon inquiry by the trial

court:

Q. [D]oes that worry you, that you have babysitters
in the house?

A. Sort of, yeah.

Q. Why is that?

A. Because I don’t see why I would have to be there
when I could have been spending time with either
my step-mom or my dad at my father’s house.

Id.

B.M.M., then age eight, testified during her in camera interview as

follows.

Q. [W]hen you’re at your dad’s house, do you get to
spend time with him?

A. Yeah, much more than we do with our mother.

Q. [ ] Because your mom’s working?

A. We’re a lot – we only get – we hardly get on
Sundays with her, and then we get Monday and
Tuesday, and then with our father we get like half of
the day of every day we’re there with him.

Id. at 254-255.

J.R.M., then age seven, testified during her in camera interview that,

“I trust my dad more than my mom.” Id. at 269. She explained as follows.

Q. Why is that?

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A. Well, it’s not really a reason, just I trust my dad
more than mom.

Q. You trust him when it comes to what?

A. Pretty much everything.

Q. Really?

A. (Nods head affirmatively).

Q. Like telling him something that’s bothering you?

A. (Nods head affirmatively).

Q. Is that a yes?

A. Uh huh (Affirmative response).

Q. You would tell your dad before you’d tell your
mom?

A. Yeah.

Q. But why?

A. Well, sometimes I don’t really have time to tell my
mom, so I kind of have to tell my dad first.

Q. Because of her working, you mean?

A. Yeah.

Id. at 269-270. Significantly, the Children testified that they would like to

spend overnights with Father on his custodial days. Id. at 243-244, 255-

256, 268.

Based on the foregoing testimonial evidence, we discern no error of

law or abuse of discretion by the trial court in fashioning a custody order

based, in part, on Mother’s work schedule. Further, contrary to Mother’s

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assertion, we discern no punitive motive by the trial court. Rather, we

conclude the trial court properly fashioned a custody order based on the

totality of the evidence, including, but not limited to, the Children’s

testimony that they feel the absence of Mother when she is at work, and

that they see Father more than Mother during the parties’ respective custody

times. Moreover, we will not disturb the order to the extent E.D. will provide

care to the Children when Father is at work. Mother’s argument in this

respect is speculative, as the record is not clear regarding Father’s work

schedule. In fact, the testimonial evidence indicates that Father’s work

schedule is flexible and that he has changed it in the past to accommodate

the Children. N.T., 2/17/14, at 12, 134. As such, we conclude the trial

court’s consideration of Mother’s work schedule was proper, and its custody

decision reasonable. Therefore, Mother’s second issue fails.

In her third issue, Mother argues the trial court failed to properly

consider Father’s alleged sexual deviancy as testified to during the custody

trial by Mother’s sixteen-year-old niece, A.J., and eighteen-year-old niece

T.J., the daughters of Mother’s brother. Mother’s Brief at 11-12. The trial

court accurately set forth the testimony of A.J. and T.J. in its opinion

accompanying the subject order, which we adopt herein. See Trial Court

Opinion, 2/28/14, at 4. Further, the trial court accurately stated that Father

specifically denied the allegations of A.J. and T.J. and that he denied

knowing of the allegations at any time prior to Mother raising them in her

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pre-trial conference memorandum filed on December 2, 2013.6 Id. at 5;

see also N.T., 2/17/14, at 215-219.

The trial court concluded in its opinion that accompanied the subject

order as follows.

While the [trial c]ourt certainly cannot ignore the
allegations of A.J. and T.J., the [trial c]ourt is very
concerned that no adult felt it appropriate to raise
the allegations of Father’s alleged inappropriate
behavior prior to the December 2013 Pre-Trial
Conference Memorandum. Many opportunities to
address the allegations, discover the truth, and
respond accordingly were missed…. Only after
Father requested additional time with the [C]hildren
by moving this case to pre-trial conference did
Mother engage in the investigation reported to the
[trial c]ourt at trial. In addition, there is no evidence
that the [C]hildren … have ever been subjected to
inappropriate touching or other inappropriate
conduct by Father.

The state of the record leaves the [trial c]ourt with
far more questions than answers. When balanced
with the other credible evidence in the case, the
[trial c]ourt is constrained to find that A.J.’s and
T.J.’s allegations, without more, are insufficient to
warrant either reducing Father’s time with the
[C]hildren or requiring that his time be supervised.

6
In her pre-trial conference memorandum, Mother alleged deviant sexual
behavior by Father against teenage girls. Mother’s Pre-Trial Memorandum,
12/2/13. In addition, Mother alleged that Father has made his minor
daughters, B.M.M. and J.R.M., eat dinner topless. Id. The trial court found
that Father and E.D. have made the Children eat “messy spaghetti dinners”
without their shirts, on occasion. Trial Court Opinion, 2/28/14, at 11 n. 2.
The court concluded that this decision by Father is not inappropriate, but
cautioned that “as the children age and become more aware of their
developing bodies, Father is again, strenuously encouraged to find another
way to resolve this issue.” Id. Upon review, the record supports the court’s
conclusion.
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Trial Court Opinion, 2/28/14, at 11-12 (footnote omitted).

Further, the trial court explained in its Rule 1925(a) opinion.

Mother and her sister[-in-law], E.J., both testified
that they were aware of A.J.’s allegations at the time
the incidents were alleged to have occurred 4 ½
years ago. According to Mother, Father was
confronted and denied the allegations. At trial,
Father denied the allegations and further denied
even being confronted 4 ½ years ago by Mother or
E.J. Nothing further was done to protect A.J., her
sister[,] T.J., or the [C]hildren from Father such as
prohibiting contact, requiring counseling, or initiating
a report to police or child protective services.
Further, A.J. testified that she was told by her
mother that if she continued her allegations she was
going to Brook Lane (a mental health facility) –
testimony th[e trial c]ourt interpreted as evidence
that A.J.’s own mother (E.J.) did not believe her
daughter at the time she first made these allegations
against Father. A.J. also explained that at the time,
she was known for “making things up.”

Trial Court Opinion, 4/15/14, at 7. The trial court stated that the Children’s

safety is of paramount concern. Id. at 8. However, it concluded, “to

deprive the [C]hildren of their relationship with Father on evidence the [trial

c]ourt did not find sufficiently persuasive, is not in the [C]hildren’s best

interest.” Id.

Upon careful review, we hold that the totality of the record evidence

supports the trial court’s conclusions. In so holding, we give deference to

the trial court on its determinations regarding credibility and weight of the

evidence with respect to the allegations of sexual deviancy made against

Father. See A.V., supra at 820. Accordingly, Mother’s third issue fails.

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In her fourth issue, Mother argues the trial court erred with respect to

the weight it placed on four separate voice mail recordings Father left on the

answering machine of the Children’s maternal grandmother on February 22,

2011. Mother’s Brief at 14-15. There is no dispute that the recordings

“consisted of several minutes of a profanity-laden tirade directed at” the

Children’s maternal grandmother. Trial Court Opinion, 4/15/14, at 8 n.2.

Mother asserts that “[i]t is clear from said messages that Father has a very

short fuse, is full of anger, and has no ability to temper his behavior.”

Mother’s Brief at 15. Mother argues Father engaging “in reprehensible

behavior on one occasion should cause fear of repetitive behavior, especially

where young, defenseless children are involved.” Id. As such, Mother

contends that the trial court erred in failing to order that Father participate

in a mental health evaluation and attend anger management classes before

modifying the custody order.

The trial court placed little weight on Father’s voice mail messages,

admitted as evidence during the custody trial. N.T., 2/17/14, at 193-198,

227. The trial court found that, “[a]side from the recordings all left on the

same day, the Court heard no evidence to support Mother’s allegations that

Father” suffers from anger issues. Trial Court Opinion, 4/15/14, at 8

(footnote omitted). The trial court explained as follows.

Clearly, on the date and time in February, 2011, that
the messages were left, Father was irate with
Maternal Grandmother and chose to express his
anger by verbally assaulting her on her answering

-19 -
J-A26026-14

machine. While the [trial c]ourt cannot sanction
such inappropriate behavior, the [trial c]ourt cannot
assume that because Father engaged in this
inappropriate behavior on one day three years ago
just after the break-up of the parties’ marriage, that
he currently suffers from mood disorders, anger
issues, and the inability to handle matters that
concern him in an appropriate manner, or even more
importantly, that he will treat his children in a similar
manner either at present or in the future. There was
no evidence to suggest that Father’s behavior was a
pattern or that Father has ever or will in the future
engage the [C]hildren in similar scenarios.

Id. at 9 (footnote omitted). Upon careful review, we hold the trial court’s

conclusion is reasonable in light of the record evidence. Additionally, we

defer to the trial court with respect to its determination on the weight of the

evidence in this regard. See A.V., supra at 820. Therefore, Mother’s

fourth issue fails.

In her final issue, Mother argues the court erred in prohibiting the

testimony of J.N., Mother’s long-time friend, with respect to observing

Father in the possession of alcohol while watching the Children in the park

sometime in 2010. Mother’s Brief at 15-16. In reviewing said claim, we are

guided by the following.

When we review a trial court ruling on admission of
evidence, we must acknowledge that decisions on
admissibility are within the sound discretion of the
trial court and will not be overturned absent an
abuse of discretion or misapplication of law. In
addition, for a ruling on evidence to constitute
reversible error, it must have been harmful or
prejudicial to the complaining party.

-20 -
J-A26026-14

Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (internal citation

omitted).

The trial court explained that it prohibited the proffered testimony

because it was not relevant. Specifically, the trial court found that the

proffered testimony “related to a period of time when the parties and the

[C]hildren were living together as an intact family.” Trial Court Opinion,

4/15/14, at 10. Further, the trial court stated, “Mother testified that she had

never known Father to have issues with drugs or alcohol.” Id. Finally, the

trial court recognized that the proffered testimony “would have established

that Father possessed alcohol while with the [C]hildren, not that he abused

alcohol, a significantly different consideration.” Id. (emphasis in original).

Upon careful review, we discern no abuse of discretion by the trial court in

prohibiting the proffered testimony of J.N. As such, Mother’s fifth and final

issue fails.

In this case, the trial court thoroughly considered the Section 5328(a)

best interest factors, and we are unable to find any abuse of discretion.

Thus, we will not disturb the shared legal and physical custody award.

Accordingly, we affirm the order.

-21 -
J-A26026-14

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2015

-22 -
 Circulated 12/30/2014 04:01 PM

IN THE COURT OF COMMON PLEAS OF THE 39 TH JUDICIli i)fffiit.f1f
1
2: 05
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH I; I ,', L. LE ;'\FW
f ilU Tl!UIIOT/I,RY
C.M.M., Civil Action - Law [Ji::PUTY ~J . rn__
Plaintiff ---
v. No. 2011-579

D.R.M., In Custody
Defendant Honorable Angela R. Krom, 1.

OPINION AND ORDER OF COURT

Before Krom, J.
 Circulated 12/30/2014 04:01 PM

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

C.M.M. l , Civil Action - Law
Plaintiff

v. No. 2011-579

D.RM., In Custody
Defendant Honorable Angela R Krom, J.

OPINION

Before the Court is the Petition for Modification of Custody Order filed by D.RM.

("Father"), on July 30, 2013. Father's Petition seeks shared physical custody ofthe parties' three

children. C.M.M. ("Mother") not only objects to Father's request, but also seeks to limit

Father's time with the children and require that his custodial periods be supervised. For the

reasons that follow, the Court must find that it is in the children's best interest to spend more

time in their Father's custody; accordingly, his request for shared physical custody will be

granted.

FACTS

Father, currently forty-one years old, resides on Potomac Street in Waynesboro, Franklin

County, with E.D., his twenty-three year old girlfriend of three (3) years. Father and B.D. have

been together since January 2011 when Father and Mother separated. Upon separation, Father

moved in with E.D. and another individual. Since early 2012, Father and E.D. have lived at the

Potomac Street address.

1 The Court believes that it is best practice to redact full names of the parties and the child from the caption and body
of its opinions in custody matters and instead use initials to identify the parties. The Order will retain the parties'
full names.
 Circulated 12/30/2014 04:01 PM

Father is employed at Village Spirits in Smithsburg, Maryland, a position he has held

since May 2013. He works approximately 30 to 36 hours per week either noon to 5:00 p.m. or

5 :00 p.m. to close. E.D. works for the Waynesboro YM. C.A in their before and after school

program at Fairview Elementary School.

Mother, now thirty-eight years old, lives on Fifth Avenue in Waynesboro, Franklin

County. She lives with RK., her twenty-eight year-old boyfriend of three (3) years and the

children during her periods of custody. RK. 's five-year-old daughter, S.K., stays with her father

on Sunday's and Monday's. Mother is a senior manager with Outback Steakhouse in

Hagerstowp., Maryland, and is required to work long hours. She works typically Wednesday,

Thursday and Friday from either 1:00 p.m. or 3:00 p.m. until approximately 10:00 p.m. to 1:00

a.m. On Saturday'S and Sunday'S when the children are in her custody, she starts at 3:00 p.m.

and works until 1:00 or 2:00 a.m. On the weekends the children are with their father, Mother

starts work at approximately 9:30 a.Ill. and returns home by 11:00 p.m. R.K. is a manager for

Game Stop in the Walkersville, Maryland store. He works 9:00 a.m. to 5:00 p.m. five days each

week, Tuesday through Saturday.

The children in this matter are L.L.M., born March 19, 2004; B.M.M., born May 13,

2005; and lRM., born July 21,2006. L.L.M. is in fourth grade at Fairview Elementary School.

He is a good student and is involved in the school district's gifted and talented program. He

swims on the Waynesboro YM.C.A. swim team. B.M.M. is in third grade at Fairview

Elementary School, where she is a good student. She also swims on the Waynesboro YM.C.A.

swim team. lRM. is a second grader at Fairview Elementary School. She is also a good

student. The children are in good health. None ofthe children have behavior or attendance

issues at school. All three of the children are well-behaved in their parents' homes

2
 Circulated 12/30/2014 04:01 PM

· DISCUSSION

The paramount concern in any child custody case is the best interests of the children. To

determine what is in the children's best interest, the Court must engage in a case-by-case analysis

of all of the factors that may legitimately affect the physical, intellectual, moral, and spiritual

well-being of the children. Durning v. BalentlKurdilla, 19A.3d 1125 (Pa. Super. 2011). The

legislature has codified the factors that a court must consider in determining what is in the best

interest of the children. See 23 Pa. C.S.A. §5328. Bach of the applicable factors will be

discussed.

1. Which party is more likely to encourage and permit frequent and continuing
contact between the children and the other party?

Father is the party more likely to encourage and permit frequent and continuing contact

between the children and their Mother. This finding is based primarily on Father's willingness to

permit Mother to spend time with the children during the periods that the children are not in

school and Mother is offwork.

Conversely, Mother has been less likely to permit Father to spend time with the children

outside of the controlling Order. She has been reluctant to expand Father's periods of physical

custody beyond that specified in the August 8, 2013 Order of Court. At the conciliation

conference in October 2013, Mother did agree to allow Father to exercise custody one overnight

in a two week period - specifically every other Saturday night. Currently, Mother seeks to limit

Father's time with the children and requests that Father's time be supervised by an adult other

than B.D.

3
 Circulated 12/30/2014 04:01 PM

2. The present and past abuse committed by a party or member of the party's
household.

At trial, the Court heard testimony from Mother's teenaged nieces, T.J. and AJ. T.J.,

now 18 years old, alleged that in the summer of 20 10 when she was visiting the family and

helping Father and Mother with the children prior to their separation, she and Father engaged in

a conversation about sex. During that conversation, Father gave her a vibrator, which she

promptly returned. She testified that she did not tell anyone about the incident until recently

when her sister, AJ., told her of a similar situation involving Father. TJ. also testified that on

one occasion Father gave her alcohol. She elaborated that she and Father were "talking and

chilling" in his bedroom watching television. He offered her a wine cooler, which she drank, as

well as two or three more. T.J. denied Father's rebuttal allegations that she actually stole the

alcohol and consumed it without Father's knowledge while at the parties' home.

AJ., now 16 years old, testified that approximately 4 Yz years ago when she was 11 or 12

years old, she was in the parties' home with Father in his bedroom watching television while

Mother was at work. AJ. alleged that Father put his hand up her shirt and touched her breasts.

Father then told her he was sorry. She testified that Father often commented on her body,

specifically her chest and her "butt". AJ. also related that during the same time frame, Father

gave her a vibrator, as well. AJ. told her mother, EJ., of Father's conduct. Although her

mother became upset, she ultimately told AJ. that if she "kept it up" she was going to Brook

Lane (a mental health facility). Both Mother and her sister, EJ., testified as to confronting

Father with AJ. 's allegations at the time she first made them. Both testified that Father denied

the allegations. Nothing further came from AJ. 's allegations until Mother resurrected the

allegations just prior to trial. In fact, not only was nothing done to follow up on the allegations,

but AJ. was also permitted to continue to visit Mother and Father.

4
 Circulated 12/30/2014 04:01 PM

In rebuttal, Father denied ever hearing the allegations presented by AJ. or T.J. He

specifically denied ever being alone in his room with AJ. and denied ever providing a vibrator to

either of his nieces. He also denied ever being confronted by his sister-in-law or Mother about

AJ.' s allegations. He further accused T.J. of stealing alcohol on one occasion when she was

spending the weekend at his and Mother's horne.

Father argued that it was not until after the October 4,2013 Conciliation Conference that

Mother chose to raise the above allegations, having failed to do so in her Complaint for Custody

filed February 11, 2011, and her Conciliation Memorandum of September 9, 2013. In fact, the

first time this issue is raised by Mother in official Court filings is in Mother's December 2, 2013

Pre-Trial Conference Memorandum. Notably, it was Father who requested this matter move

forward to trial.

In response, Mother argues that she learned of additional reports of inappropriate activity

by Father from her nieces after the October 2013 Conciliation Conference. She also received an

erroneously sent text message from Father that reminded her ofthe incident with AJ., so she

inquired again of AJ. and learned about the incidents described above. Mother argues that she

views Father's relationship with E.D. as continued inappropriate conduct and evidence of his

propensity to surround himself with significantly younger females.

To be clear, none of the children have made allegations that their father has engaged in

inappropriate behavior of a sexual or immoral nature with them. Although Mother introduced

evidence of and Father and E.D. admitted to having the children eat their messy dinners (i.e.

spaghetti) without their shirts, the Court is not convinced that such behavior is harmful to the

children. While there may be more desirable ways to keep the children's clothing clean while

eating their potentially messy meals (and the Court would strenuously encourage Father to find

5
 Circulated 12/30/2014 04:01 PM

one), this activity, alone, do not alarm this Court to such a degree to warrant limiting Father's

time with the children.

As to the allegations of A.J. and TJ., the Court is left to wonder why allegations of such

immoral and inappropriate behavior are only now coming to light when clearly, at a minimum,

the allegations of A.J. were known to Mother and EJ. years ago. Unfortunately, the timing of

Mother's allegations causes the Court concern.

3. The parental duties performed by each party on behalf of the children.

In analyzing this factor, the Court must consider which parent meets the physical,

emotional and social needs of the children. There is no evidence to suggest that either parent is

not meeting the children's basic daily needs for food, clothing and shelter. Both parents perform

parental duties on behalf of the children when they are in their care. There is no evidence to

suggest that either party's home is not physically appropriate for the children.

Both parties have participated in the children's extracurricular activities. Both Mother

and Father take L.L.M. and B.M.M. to swim team practice and are available to attend their swim

meets when their work schedules permit. Father and E.D. are involved in the P.T.O. in the

children's school.

4. The need for stability and continuity in the children's education, family life and
community life.

Generally, children thrive in environments that provide stability and continuity in their

education, family life and community life. Despite relative instability in their family life, these

children appear to be doing quite well. All three are good students who exhibit no behavioral or

6
 Circulated 12/30/2014 04:01 PM

attendance issues. All three are well-behaved and well-mannered. The two older children enjoy

participating in the swim team, and lR.M. is eager to follow in her siblings' footsteps.

Unfortunately, Mother's long work hours do create some instability for the children.

They are shuffled from caregiver-to-caregiver during Mother's periods of custody. This

shuffling is of concern to Father, who would be available to provide care for the children, and is

also of concern to the children. The Court cannot fault Mother for working to support her family

or for needing the assistance of caregivers; however, the children do feel her absence.

5. Availability of extended family.

Mother's extended family lives in the Hagerstown, Maryland, area. The children often

spend time with their cousins and Mother's other extended family, especially when Mother is

working. (See Factor 4, above). Maternal grandmother lives in Waynesboro.

Father's mother lives in Leesburg, Virginia. The children see their paternal grandmother

approximately once every three (3) months. She does speak regularly with Father and the

children on the telephone.

B.D. 's family lives in Waynesboro; however, E.D. and her family do not speak because

oftheir disapproval of her relationship with Father.

6. The children's sibling relationships.

The children are not only very close in age but are also very closely bonded to one

another. L.L.M. seems to be the big brother who feels it is his responsibility to look out for his

younger sisters. Certainly typical sibling squabbles occur, but generally the children get along

well. The children also appear to be close to R.J. 's daughter, S.K. lR.M. spoke enthusiastically

of the fun she and S.K. have playing together.

7
 Circulated 12/30/2014 04:01 PM

7. The well-reasoned preferences of the children, based on the children's
maturity and judgment.

The Court interviewed each child in camera. Each child was polite, articulate, friendly

and a pleasure to interview. Each child did his or her best to answer the Court's questions

truthfully, honestly, and openly. It was clear to the Court that all three children love each of their

parents and enjoy the opportunities they have to spend with each parent. The children enjoy

their time with R.K. and seem to have genuine affection for him - which seems to be mutual.

The children are also quite fond ofE.D. and very much enjoy her company. E.D. expressed her

affection for and commitment to the children, as well.

It was also clear to the Court that each child would welcome the opportunity to spend

more overnights with their father, especially on those occasions when they would be in the care

of a sitter because of Mother's work demands. The children's preferences will be considered, as

they were well-reasoned and the product of sufficient maturity and judgment.

8. The attempts of a parent to turn the child against the other parent.

There is insufficient evidence in the record for the Court to find that either parent has

specifically attempted to turn the children against the other parent. Both acknowledge the

children's love and affection for the other parent. Further, despite Mother's allegations of

Father's inappropriate activity with A.I. and T.r., as discussed in Factor 2, above, to her credit, it

does not appear that the children have any knowledge of the allegations - which is as it should

be. Therefore, the Court cannot find that Mother's efforts have been aimed to at turning the

children against their Father.

8
 Circulated 12/30/2014 04:01 PM

9. Which parent is more likely to maintain a loving, stable, consistent and nurturing
relationship with the children adequate for the children's emotional needs?

The parties are equally likely to maintain loving and nurturing relationships with the

children adequate for their emotional needs. The children view both parents as sources of love

and support.

10. Which party is more likely to attend to the daily physical, emotional,
developmental, educational, and special needs of the children?

Neither parent is more likely than the other to attend to the children's daily physical,

emotional, developmental, educational, and special needs. During the time that the children are

in each parent's custody, each parent, with the assistance of their significant other, has

adequately attended to the children's daily needs.

11. The proximity of the residences of the parties.

These children are fortunate in that Mother and Father live within walking distance of

each other in the Borough of Waynesboro. The children's school, Fairview Elementary, is

between the two homes. The parties do, and should continue to use the proximity of their

residences as an advantage to their children.

12. Each party's availability to care for the children or malie appropriate child care
arrangements.

Each party has been able to make appropriate child care arrangements for the children

during the periods of time that they must work. Father is regularly assisted by E.D. in caring for

the children when he is working. In fact, E.D. is employed by the YM.C.A.'s before and after

9
 Circulated 12/30/2014 04:01 PM

school program in the children's elementary school. This constant, daily interaction with the

children is a positive thing for them.

Mother also makes adequate and appropriate arrangements for care for the children with

various relatives including her nieces and her significant other when she is at work. While the

quality of the care provided for the children is not at issue, the amount of the time children spend

with alternate caregivers is a concern - primarily because the children seem to truly feel her

absence.

13. The level of conflict between the parties and the willingness and ability of the
parties to cooperate with one another.

According to Father, until recently the parties were able to communicate rather well.

More recently communication has been strained because Father is furious with Mother over the

allegations involving A.J. and T.J. (See Factor 2, above). Mother testified that she tries to keep

Father informed regarding the children, but since the Pre-Trial Conference in December, 2013,

communication has been only as necessary.

14. The history of drug and alcohol abuse of a party or member of a party's
household.

The Court heard no credible evidence of either party's current abuse of drugs or alcohol.

Although she testified that she does not know Father to have issues with drugs or alcohol,

Mother attempted to present a witness to Father's past alcohol consumption. Based on the

timeline provided by the witness, the Court found the allegations to be so dated as to be

irrelevant.

10
 Circulated 12/30/2014 04:01 PM

15. The mental and physical condition of a party or a member of a party's
household.

The Court heard no evidence of any mental or physical condition of a party or member of

the party's household that would impair the party's ability to care for the children,

CONCLUSION

After analysis and discussion of the 23 Pa,C,S,A §5328(a) factors, the Court finds that

Father's request to spend additional time with the children should and will be granted, Both

parents are equally capable of meeting their children's physical, emotional, educational, and

social needs, The parties live within walking distance of one another. The children see both

parents as sources oflove and support, Both parents are active in these children's lives, It is in

the children's best interests to spend equal time in each parent's custody,

While the Court certainly cannot ignore the allegations of AI. and T,J., the Court is very

concerned that no adult felt it appropriate to raise the allegations of Father's alleged

inappropriate behavior prior to the December 2013 Pre-Trial Conference Memorandum. Many

opportunities to address the allegations, discover the truth, and respond accordingly were missed,

Neither law enforcement nor child protective services were given the opportunity to conduct a

proper investigation into AI.' s allegations, Only after Father requested additional time with the

children by moving this case to pre-trial conference did Mother engage in the investigation

reported to the Court at trial. In addition, there is no evidence that the children at issue have ever

been subjected to inappropriate touching or other inappropriate conduct by Father,2

2 The Court refuses to find that having the children eat messy spaghetti dinners without their shirts, without more, is
inappropriate conduct. However, as the children age and become more aware of their developing bodies, Father is
again, strenuously encouraged to find another way to resolve this issue,

11
 Circulated 12/30/2014 04:01 PM

The state of the record leaves the Court with far more questions than answers. When

balanced with the other credible evidence in the case, the Court is constrained to find that AJ. 's

and T.J. 's allegations, without more, are insufficient to warrant either reducing Father's time

with the children or requiring that his time be supervised.

Mother's position with Outback Steakhouse demands that she work long hours during

both the daytime and the evening. Mother is to be commended for her strong work ethic and for

her desire to provide for the children during periods when Father has not held steady

employment. However, when Mother is at work, the children are often in the care of sitters other

than RJ. Rather than spend their time in the care of a sitter (even if the sitter is a competent,

capable family member), there is no reason that the children should not be with their father. An

Order that maximizes each party's time with the children based on their work schedules must

result.

12
 Circulated 12/30/2014 04:01 PM

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IF

2014 FEB 28 P11 2: 05

DE PUT Y._.J._.Ql______.

IN THE COURT OF COMMON PLEAS OF THE 39 TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Christina M. Miller, Civil Action - Law
Plaintiff

v. No. 2011-579

David R. Miller, In Custody
Defendant Honorable Angela R. Krom, J.

ORDER OF COURT

AND NOW, this ~ ~'/fI.- day of +Zb~ ,2014, the Court
having held a trial on February 17,2014 and for the reasons set forth in the foregoing Opinion,

enters the following Order:

IT IS HEREBY ORDERED THAT:

l. Plaintiff, hereinafter referred to as "Mother", and Defendant, hereinafter, referred

to as "Father", shall have shared legal custody of their children, Logan L. Miller, born March 19,

2004, age 9, Bailey M. Miller, born May 13,2005, age 8, and Jordan R. Miller, born July 21,

2006, age 7.

2. Mother and Father shall have shared physical custody of the children as follows:

A. Mother shall have the children every Monday at 9:00 a.m. through

Wednesday at 9:00 a.m.; and every other weekend from Friday at 9:00 a.m. through

Monday at 9:00 a.m.
 Circulated 12/30/2014 04:01 PM

Miller v. Miller No. 2011-579 Page 2

B. Father shall have the children every Wednesday at 9:00 a.m. through

Friday at 9:00 a.m.; and every other weekend from Friday at 9:00 a.m. through Monday

at 9:00 a.m.

e. At such other times as the parties agree.

3. The parties shall share custody of the children over the holidays as per the

following schedule. Holiday custody shall take precedence over the custody schedule set forth in

Paragraph 2 above.

A. For Thanksgiving, commencing in 2014 and even numbered years

thereafter, Mother shall have the children from the Wednesday before Thanksgiving at

3:00 p.m. through Thanksgiving Day at 3:00 p.m. and Father shall have the children from

Thanksgiving Day at 3 :00 p.m. through the immediately following Friday at 3 :00 p.m. In

2015 and in odd numbered years thereafter, the schedule shall be reversed.

B. For Christmas, commending in 2014 and even numbered years thereafter,

Father shall have the children from December 24th at 3:00 p.m. through December 25 th at

3:00 p.m. and Mother shall have the children from December 25 th at 3:00 p.m. through

December 26th at 3:00 p.m. In 2015 and in odd numbered years thereafter, the schedule

shall be reversed.

C. For Easter, commending in 2014 and even numbered years thereafter,

Father shall have the children from Easter morning at 9:00 a.m. until 2:00 p.m. and

Mother shall have the children from 2:00 p.m. until 7:00 p.m. In 2015 and in odd

numbered years thereafter, the schedule shall be reversed.
 Circulated 12/30/2014 04:01 PM

Millerv. Miller No. 2011-579 Page 3

D. Each year Mother shall have the children for Mother's Day and Father

shall have the children for Father's Day from 9:00 a.m. through 7:00 p.m. the day of the

holiday.

4. Each summer, each party shall have the right to have the children for two (2) non-

consecutive seven day periods. Each party shall give the other written notice of the weeks they

would like to have the children by June 1 each year. In the event of conflict, in 2014 and in even

numbered years thereafter, Father's choices shall take precedence, in 2015 and in odd numbered

years thereafter, Mother's choices shall take precedence.

5. Should either party need childcare for a period in excess of six (6) hours, he or

she will contact the other parent to provide the care before making arrangements with a third

party. Only if the other parent is unavailable to provide the care needed will third parties be

used.

6. Neither party will disparage, ridicule, or in any other way cause the children to

question the other party's love for the children or parental authority while the children are in

her/his care. Further, neither party shall allow any third party while in the presence of any of the

children to engage in any conduct to insult or ridicule the other party or engage in other conduct

that would cause the children to question the other's parental authority or love for any of the

children.

7. Neither party may make a change in residence of the children which significantly

impairs the ability of a non-relocating party to exercise custodial rights without first complying

with all of the applicable provisions of23 Pa. C.S. 5337.
 Circulated 12/30/2014 04:01 PM

Millerv. Miller No. 2011-579 Page 4

8. Pursuant to the requirements of Pa.R. c.P. 236(a)(2), (b), (d), the Prothonotary

shall give written notice of the entry of this Order, including a copy of this Order to each parties'

attorney of record and shall note in the docket the giving of such notice and the time and manner

thereof.

By the Court,

1.
The Prothonotary shall give notice to:
'/S-tephen D. Kulla, Esquire
Aeffrey S. Evans, Esquire