E.R. v. D.D.

J-A04045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.R., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

D.D.,

Appellant No. 1505 WDA 2015

Appeal from the Order Entered August 6, 2015
In the Court of Common Pleas of Elk County
Civil Division at No(s): 2007-673

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.: FILED MAY 2, 2016

Appellant, D.D. (“Mother”), appeals pro se from the order of the Court

of Common Pleas of Elk County in this child custody matter, in which E.R.

(“Father”) received additional physical custody of the parties’ daughter,

P.E.R. (“Child”). We affirm.

We summarize the history of this case as follows. Mother and Father

were married on October of 2005 and separated in May of 2007, when

Mother was several months pregnant with Child. Child was born in January

of 2008. Father then filed for visitation. Mother agreed to the visitation and

the parties eventually divorced. Father has since remarried. Mother resides

in Emporium, Pennsylvania, and Father lives in St. Marys, Pennsylvania.

In March of 2011, the trial court entered a custody order directing that

Mother would have physical custody of Child (then three years old) from
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10:00 a.m. on Monday until 12:00 p.m. on Thursday, and Father would have

physical custody of Child from 12:00 p.m. on Thursday until 10:00 a.m. on

Monday. On November 30, 2012, Father filed a petition to modify custody.

On March 12, 2013, the parties stipulated to the entry of a court order

setting out in detail the periods of custody each parent would receive.1

Although the basic weekly time frame for custody was not altered by the

trial court’s order, it did set forth greater detail regarding custody for

vacations and holidays, and provisions for travel and transportation.

Paragraph six of the court order provided as follows: “6. The parties agree

that [Child] shall attend the St. Marys Area School District commencing in

kindergarten and Mother will relocate to St. Marys Area School District.”

Custody Order, 3/12/13, at 9.

On October 14, 2014, Mother filed a pro se petition to modify custody

in which she sought primary physical custody of Child and permission to

relocate Child to an Emporium school in Cameron County. In her petition,

Mother alleged that she did not have the financial capacity to move to St.

Marys. Petition to Modify Custody, 10/14/14, at 2. In addition, in

paragraph four of her pro se petition, Mother stated the following: “4.

[Mother] has been driving [Child] to and fro[m] school daily and is under

financial strain to continue to afford to drive this far daily[.]” Id.
____________________________________________

1
Both parties were represented by counsel at the time the stipulation was
accepted by the trial court and reduced to an order.

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The parties participated in court-ordered custody evaluations. The

matter eventually proceeded to a custody hearing before the Honorable

Richard A. Masson, President Judge of Elk County, on June 23, 2015. On

August 6, 2015, the trial court entered an order modifying physical custody

in favor of Father and keeping Child in her current school district. On August

11, 2015, the trial court authored a detailed opinion setting forth its general

findings of fact and its statutory-factor findings. Mother filed this pro se

appeal on September 2, 2015. The trial court did not direct Mother to file a

Pa.R.A.P. 1925(b) statement. The trial court filed a Pa.R.A.P. 1925(a)

opinion on September 25, 2015.

Prior to discussing the substantive issues raised by Mother on appeal,

we first consider Father’s contention that Mother’s appeal should be quashed

or dismissed because of Mother’s failure to comply with provisions of the

Pennsylvania Rules of Appellate Procedure relating to the filing of the notice

of appeal in family fast track cases. Father’s Brief at 4-5. We have

reviewed the record before us and observe that Mother has failed to fully

comply with the Pennsylvania Rules of Appellate Procedure, as alleged.2

Although this Court may dismiss or quash an appeal based upon an

____________________________________________

2
Specifically, it has been alleged that Mother’s appeal failed to comply with
Pa.R.A.P. 904(a) (relating to the proper form of the notice of appeal) and (f)
(explaining the notice of appeal should advise the appellate court that the
appeal is a children’s fast track), and Pa.R.A.P. 906(a) (relating to service of
notice of appeal).

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appellant’s failure to follow the Pennsylvania Rules of Appellate Procedure,

because her violations have not hampered the presentation of the appeal to

this Court, and we are able to discern the issues raised by Mother on appeal,

we decline to dismiss or quash in this instance. In re J.F., 27 A.3d 1017,

1019-1020 (Pa. Super. 2011). See also Wilkins v. Marsico, 903 A.2d

1281, 1285 (Pa. Super. 2006) (deciding issues raised on appeal by pro se

appellant because, “[d]espite the numerous defects in his brief, we are able

to identify [a]ppellant’s issues”). Thus, we will proceed with our review.

In her pro se brief, Mother presents the following issues for our

review, which we reproduce verbatim:

1. Whether or not the trial committed an error in law and or
abused its discretion by taking the appellants custody time away
when even the father wanted to keep the previous order the
same?

2. Whether or not the trial committed an error in law or abused
its discretion by making finding of facts that was contrary to the
sufficient evidence or testimony presented?

3. Whether or not the trial committed an error in law or abused
its discretion by ignoring the findings and report by Daniel
Keysor, the clinical custody evaluator and not having him
present in court but allowing the plaintiff to argue the report and
aluding to a prior relationship between the appellant and the
evaluator?

4. Whether or not the trial committed an error in law or abused
its discretion by not giving the proper weight to all thje factors
that are in the best interest of the child?

5. Whether or not the trial made an error in law or abused its
discretion by giving more time to the father or appellee after he
admitted in court to using alcohol with methadone and Percocet,
and the evaluator finding an addiction?

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J-A04045-16

Mother’s Brief at 4.

Initially, we observe that Mother’s pro se brief fails to conform to

multiple rules of appellate procedure pertaining to the construction of

appellate briefs. In particular, Pennsylvania Rule of Appellate Procedure

2119 addresses the argument section of appellate briefs and provides, in

part, as follows:

Rule 2119. Argument

(a) General rule. The argument shall be divided into as many
parts as there are questions to be argued; and shall have…such
discussion and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).

“The Rules of Appellate Procedure state unequivocally that each

question an appellant raises is to be supported by discussion and analysis of

pertinent authority.” Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa.

Super. 2002). “Appellate arguments which fail to adhere to these rules may

be considered waived, and arguments which are not appropriately developed

are waived. Arguments not appropriately developed include those where the

party has failed to cite any authority in support of a contention.” Lackner

v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (citations omitted). This

Court will not act as counsel and will not develop arguments on behalf of an

appellant. Irwin Union National Bank and Trust Company v. Famous

and Famous and ATL Ventures, 4 A.3d 1099, 1103 (Pa. Super. 2010)

(citing Commonwealth v. Hardy, 918 A.2d 766 (Pa. Super. 2007)).

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Although Mother lists a total of five issues in her statement of the

questions presented, we observe that the argument portion of Mother’s brief

is not divided into as many parts as there are questions to be argued

because the argument portion is not divided into any distinctive segments.

Mother’s Brief at 9-13. Even more disconcerting is the fact that the

argument portion of Mother’s brief does not contain meaningful discussion of

relevant legal authority. Id. at 10-13. Rather, the argument section of

Mother’s brief consists of general statements as she sees the facts of this

case and lacks any legal discussion or analysis. This lack of analysis hinders

meaningful appellate review. Accordingly, because Mother’s arguments on

her issues fail to set forth any meaningful discussion of relevant legal

authority, we could conclude that her issues are waived. However, we

decline to do so in this instance and we will proceed with a guarded analysis

of Mother’s overarching claim of trial court error.

Issues one, two, four, and five presented by Mother essentially

address the concerns that the trial court failed to properly weigh the

evidence and apply the statutory factors in making its custody

determination. Because she has presented these issues in a single

argument section of her brief, we likewise address her claims regarding

these issues in a single discussion.

At the outset, we observe that, as the custody hearing in this matter

was held on June 23, 2015, the Child Custody Act (“the Act”), 23 Pa.C.S. §§

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J-A04045-16

5321 to 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).

In custody cases, our standard of review is as follows:

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,
or are unreasonable in light of the sustainable findings of the
trial court.

C.R.F., 45 A.3d at 443 (citation omitted).

We have stated:

[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). Moreover, in

M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated the

following regarding an abuse of discretion standard:

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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.

Id. at 18-19 (quotation and citations omitted).

With any custody case decided under the Act, the paramount concern

is the best interests of the child. 23 Pa.C.S. §§ 5328, 5338. Section 5338

provides that, upon petition, a trial court may modify a custody order if it

serves the best interests of the child. 23 Pa.C.S. § 5338.3

____________________________________________

3
Section 5323 of the Act provides for the following types of custody awards:

(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

(Footnote Continued Next Page)

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Section 5328(a) sets forth the best-interest factors that the trial court

must consider. E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super. 2011).

Specifically, section 5328(a) of the Act 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.

_______________________
(Footnote Continued)

23 Pa.C.S. § 5323(a).

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(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.

(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. § 5328(a).4

____________________________________________

4
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S. § 5328(a)(2.1), providing for consideration of
child abuse and involvement with child protective services. Although
(Footnote Continued Next Page)

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Mother argues that the trial court erred in failing to properly consider

various facts in reaching its custody decision and in weighing the evidence

presented. Mother’s Brief at 10-13. In a rambling fashion Mother contends

that the trial court failed to consider testimony about how well she cares for

Child, how she takes Child to church, the bond that Mother has with Child,

Father’s admission to taking prescription drugs and drinking alcohol, and

Father’s alleged lying to make himself appear as a better parent. Id.

We have reviewed the briefs of the parties, the certified record, the

relevant law, and the opinion filed by the trial court on August 11, 2015. It

is our conclusion that the trial court thoroughly considered the facts as

provided at the custody hearing and fully considered the statutory factors

required pursuant to 23 Pa.C.S. § 5328(a). Trial Court Opinion, 8/11/15. 5

Thus, the trial court adequately considered the favorable relationship and

bond that exists between Mother and Child and the negative aspects

_______________________
(Footnote Continued)

applicable at the time of the custody hearings in this matter, there was no
evidence that would have required the trial court’s consideration of this
factor.
5
We note that it appears that the trial court inadvertently failed to list the
fourth factor in its opinion dated August 11, 2015. Said factor asks the trial
court to consider “[t]he need for stability and continuity in the child’s
education, family life and community life.” Although the trial court did not
enumerate factor four in its opinion, it did address the substance of the
factor in its decision. Trial Court Opinion, 8/11/15, at 11-12. Hence, we are
satisfied that the trial court adequately considered factor four in making its
custody determination.

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pertinent to Father as alleged by Mother. Likewise, our review reflects that

the trial court contemplated the favorable aspects of Father’s relationship

and contact with Child, and the negative aspects pertinent to Mother. As the

trial court effectively concluded, “Despite the want of substantial cogent and

compelling evidence, both parents are undoubtedly positive parental forces

in [Child’s] life and are expected to continue to promote her best interest in

the future by continuing to maintaining [sic] constant contact with her.” Id.

at 13. Hence, we discern no abuse of discretion on the part of the trial court

in reaching its decision to have Child remain at her school in St. Marys

School District and in altering the custody arrangement by granting Father

custody during the school week. Therefore, we adopt the trial court’s

thorough analysis of the statutory custody factors as presented in its opinion

of August 11, 2015, and we conclude that Mother’s contrary claims lack

merit.6

In issue number three, Mother argues that the trial court erred in

failing to have Daniel Kysor, the licensed psychologist who prepared a report

for the trial court, present at the custody hearing. Mother’s Brief at 10.

Essentially, Mother asserts that because Mr. Kysor was not present at the

custody hearing, the trial court may have failed to properly consider his

recommendations.
____________________________________________

6
The parties are directed to attach a redacted copy of the August 11, 2015
opinion in the event of further proceedings in this matter.

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J-A04045-16

It is accepted that under Pa.R.C.P. 234.1, a party may subpoena

another person to attend a hearing. Furthermore, it is axiomatic that a

party must make a timely and specific objection to a procedure in order to

preserve the issue for appellate review; otherwise, the party’s failure to

object results in waiver of the claim. M.O. v. J.T.R., 85 A.3d 1058, 1061

(Pa. Super. 2014) (citing Fillmore v. Hill, 665 A.2d 514 (Pa. Super. 1995);

Smith v. Smith, 637 A.2d 622 (Pa. Super. 1993)).

Here, our review of the record reflects that neither party sought to

subpoena Mr. Kysor to ensure his presence at the custody hearing. In

addition, our review reveals that the trial court accepted Mr. Kysor’s report

into evidence without objection from either party. Specifically, the trial court

stated the following when it admitted Mr. Kysor’s report into evidence:

THE COURT: It will be admitted as Court Exhibit 1. There was
no objection lodged by either party to the admissibility of Mr.
Kysor’s summary or the results of his evaluation. So, that will
be marked as Court Exhibit 1 and admitted.

N.T., 6/23/15, at 9. If Mother wanted to challenge the admission of the

report and lack of Mr. Kysor’s presence at the hearing, she should have done

so at the custody hearing. Thus, Mother’s failure to object to the admission

of the report, even though Mr. Kysor was not present at the hearing, results

in waiver of any challenge to its admissibility and its consideration by the

trial court.

Although not raised in her list of issues in the statement of questions

presented portion of her appellate brief, Mother also argues that the trial

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judge should have recused himself from this case. Mother’s Brief at 11.

Mother alleges that she previously appeared before the same trial judge in

criminal matters in 2007-2008 and contends that the judge was not

impartial in this custody matter. Id.

Regarding challenges to the trial court’s authority and suggestions that

recusal was appropriate, we have stated the following:

It is the duty of the party asserting disqualification to file
the petition in a timely fashion. Rizzo v. Haines, 555 A.2d 58,
70 (Pa. 1989). A recusal motion that is not timely filed will be
denied. Id. “It is well-settled that a party seeking recusal or
disqualification must raise the objection at the earliest
possible moment, or that party will suffer the consequence of
being time barred.” Commonwealth v. Stafford, 749 A.2d
489, 501 (Pa. Super. 2000) (quotation marks and citations
omitted) (emphasis added). In addition, it is an appellant’s
obligation to demonstrate which appellate issues were preserved
for review. Pa.R.A.P. 2117(c), 2119(e).

Coulter v. Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2013).

Our review of the certified record reflects that Mother failed to seek

disqualification of President Judge Masson at any time prior to this appeal.

Likewise, Mother has failed to demonstrate where she has preserved this

issue for appellate review. Accordingly, we are constrained to conclude that

this issue is waived.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/2/2016

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 Circulated 04/21/2016 03:17 PM

IN THE COURT OF COMMON PLEAS OF THE FIFTY-NINTH
JUDICIAL DISTRICT OF PENNSYLVANIA

Ellll4ml * COUNTYBRANCH-ELK
Plaintiff *
*
vs. * CIVIL
*
l (f/k/a~ *
*
I
'1
Defendant * NO. 2007-673

Pending before the Court is the pro se petition to modify custody filed by defendant, I
D•.• D a 2 (formerly known as D . R~ on October 14, 2014. In her petition, I
defendant has sought to modify the custody provisions set forth in the March 11, 2013 Order of!
C~urt which adopted and approved the. Febru~y 7, ~013 stipulation entered into by the parties 'I
with regard to the custody of the subject mmor child, P~E-- age 7, born
I
JanuaryW, 2008. The February 7, 2013 stipulation included provisions for the parties' equal I
sharing of legal and physical custody and the stipulation specifically referenced that U J j
!
would attend school in the St. Marys Area School District and that defendant would relocate to
I
the St. Marys Area School District. Moreover, both parents were represented by counsel when
the stipulation was entered. I
ij At the time of the June 23, 3015 hearing conducted on the modification petition, plaintiff]
Ftlf~, appeared and was represented by Attorney Thomas G.G. Coppolo, and defendant
I911 Diii (f/k/a DQ Rdll) appeared pro se. The evidence introduced at time of
hearing consisted of the testimony of plaintiff 1*Rtml; defendant D C. ~; Pastor
P- W. S of the First Presbyterian Church of Emporium, Pennsylvania; maternal
grandmother H9JDIIIIJ, and paternal stepmother SC Rtllf. Documentary evidence
was also introduced in the nature of the custody evaluations and bonding assessments conducted
by licensed psychologist Daniel Kysor, school rankings for South St. Marys Elementary School
and Woodland Elementary School, P_.,s final report card for 2014-15 and an internet article
 '•

I
l I i
II
II
I
I
DISCUSSION
i
. Section 5338 of the Child Custody Act, 23 Pa.C.S.A. 5321-5340, provides that upon I
pe~tiof, '- trial fourt may modify a custody order if it serves the best interests of the· child. "The 1
best inter~sts 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. 11
i Rinrr'. 90; Afd 50f, 512 9' to I
p
lI church with her, which father permitted although the services were during his period of
I)
physical custody. Although father does discuss religious issues with P.. , he does so
I lI
!
on a much more informal basis and thus the spiritual development of 1£ is weighted

1 ! slightly in favor mother.
ii
11
Contact with the criminal justice system is weighted slightly in favor of father, I
I!
I
who has no criminal record. Mother presents with a criminal history which includes a I
I I
~I
I'I I
12 I
11
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!I I
 p
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I!
!r
fJ l
I' l
[. ! 1. 2007 guilty plea for a violation of the Drug, Device and Cosmetic Act, graded as an (

!
r unclassified misdemeanor, a 2007 guilty plea to a summary offense of harassment, a I
1·1 2008 guilty plea to a misdemeanor two simple assault and a 2008 guilty plea to an!
11 I
ungraded misdemeanor driving after imbibing offense which resulted in a three-day to six
11 month sentence of incarceration. The criminal incidents occurred in a relatively I
II compressed time period in 2007 and 2008, including two within months of P.. sI
'i ;
I, birth, but since then Mother's criminal record is clean, notwithstanding evidence
Ii
!I•

lI regarding a May 2015 incident involving a confrontation with her aunt which resulted in !
II charges filed before Magisterial District Judge Barry D. Brown. I
IJ Despite the want of substantial. cogent and compelling evidence, both parents are I
1!I undoubtedly positive parental forces in P .. s life and are expected to continue to promote her
I
I
I best interest in the future by continuing to maintaining constant contact with her. I
L I
JI I
I
I

II
ii! t

11 August 11, 2015

l
11

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l

I
I
!

13