W.H. v. M.K.

J-A03032-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

W.H., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

M.K.,

Appellant No. 1907 EDA 2017

Appeal from the Order Entered May 17, 2017
in the Court of Common Pleas of Bucks County
Family Division at No.: 2013-62212-C-39

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 24, 2018

M.K. (Mother) appeals from the order of the Court of Common Pleas of

Bucks County (trial court), entered May 17, 2017, that awarded W.H. (Father)

primary physical and legal custody, and awarded only partial physical custody

to Mother. We affirm.

The parties were married in September of 2007. Their only child, E.H.,

(Child), was born in August of 2010, and was six years old at the time of the

trial court proceedings that led to this appeal. The parties separated in

February of 2014 when Father secured an order for protection from abuse

(PFA order) against Mother, effective in March of that same year, which

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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evicted Mother from the parties’ home and protected Child from Mother for six

months, with limited supervised visitation. This Court denied Mother’s appeal

of the PFA order on September 11, 2014. (See W.W.H. v. M.K., 107 A.3d

223 (Pa. Super. 2014) (unpublished memorandum)). The parties were

divorced in November of 2016.

In February of 2016, Father filed a Petition to Modify Custody and, on

May 4, 2016, the trial court ordered the parties to participate in a Court

Conciliation and Evaluation Services (CCES) evaluation. Eric Frajerman,

Psy.D., issued a CCES report on August 18, 2016. Dr. Frajerman

recommended shared physical custody but recommended Father have sole

legal custody over Child’s medical decisions due to concerns about Mother’s

medical judgment and failure to communicate with Father.

The parties negotiated and entered into an agreed custody order on

December 2, 2016, which required that Child would treat only with pediatrician

Elana Altschuler, M.D. The order required the parties to notify each other of

any sick appointments at the time when the appointment is made, and

required the parties to immediately notify each other of any emergency

appointments. It also precluded either party from giving Child medicine not

prescribed by Dr. Altschuler.

Father filed an Emergency Petition to Modify Custody on January 3,

2017, after Mother took Child to his pediatrician on December 28, 2016,

without prior notice to Father, and alleged that Father had sexually abused

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Child. As a result of these allegations, Child was taken by ambulance to a

hospital in Princeton, New Jersey, where he was given a rectal examination.

Child was released from the hospital into Father’s custody after no evidence

of any abuse was discovered. Bucks County Children and Youth Services

(BCCYS) investigated the allegations and determined that they were

unfounded. In addition to this incident, Mother has accused Father of sexually

abusing Child on three separate occasions over the past six years. All of these

allegations were determined to be unfounded.

The trial court held hearings on Father’s emergency petition on March

6, 2017, March 22, 2017, March 29, 2017, April 21, 2017, and April 27, 2017.

Testifying at those hearings, in addition to Mother and Father, were BCCYS

social worker, J.L.; a friend of Mother who testified from Germany, M.S.; a

friend of Mother from Bucks County, A.S.; Mother’s neighbor, K.D.; and

Mother’s treating therapist, Donald A. Burstein, Ph.D. The court found

Mother’s testimony and that of M.S., A.S., and K.D. to be not credible.

The trial court entered the order complained of here on May 17, 2017,

granting Father primary physical custody and sole legal custody of Child, and

Mother partial physical custody. Mother timely filed her notice of appeal on

June 13, 2017, and, in response to the trial court’s order of June 13, 2017,

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she filed her concise statement of errors complained of on appeal on July 12,

2017.1

Mother presents the following questions for our review:

1. Whether the [t]rial [c]ourt committed reversible harmful error,
abused its discretion, and committed an error of law when it
denied and significantly interfered with [Mother’s] substantive and
procedural Due Process rights[?]

2. Whether the [t]rial [c]ourt committed reversible harmful error
and/or an abuse of discretion by improperly allowing into evidence
impermissible and harmful speculation and hearsay[?]

(Mother’s Brief, at 6).

Mother presents us with a challenge to the custody order raising

questions of law and abuses of discretion. As with all questions of law, our

appellate standard of review is de novo and our scope of review is plenary.

In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (citation omitted).

In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.

§§ 5321-5340, 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
____________________________________________

1 There was no objection or claim of prejudice from Father about this late
filing, and we have accepted it in reliance on our decision in In re K.T.E.L.,
983 A.2d 745, 74-48 (Pa. Super. 2009). Cf. J.P. v. S.P., 991 A.2d 904, 908
(Pa. Super. 2010) (finding that the appellant waived issues for appeal by
failing to comply with the trial court’s order directing her to file a concise
statement within twenty-one days).

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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. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (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) (citation omitted).

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.

Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.

M.A.T., supra at 18-19 (citations omitted).

Mother first claims that the trial court erred and abused its discretion

where it denied her substantive and procedural due process rights. (See

Mother’s Brief, at 15-41). Mother has waived this issue.

It is well-settled that:

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Failure to timely object to a basic and fundamental error . . . will
result in waiver of that issue. On appeal, the Superior Court will
not consider a claim which was not called to the trial court’s
attention at a time when any error committed could have been
corrected. The principle [sic] rationale underlying the waiver rule
is that when an error is pointed out to the trial court, the court
then has an opportunity to correct the error. . . .

Fillmore v. Hill, 665 A.2d 514, 516 (Pa. Super. 1995), appeal denied, 674

A.2d 1073 (Pa. 1996) (citations omitted).

Here, our review of the record reveals that Mother failed to raise this

issue in the trial court. Therefore, she has waived this claim. See id.; see

also Smith v. Smith, 637 A.2d 622, 626 (Pa. Super. 1993), appeal denied,

652 A.2d 1325 (Pa. 1994) (“Appellant’s failure to object to the court’s

noncompliance with the procedural [requirements] constituted a waiver of his

[issue on appeal].”).

Additionally, we observe that Mother has failed to develop a coherent

argument. “The failure to develop an adequate argument in an appellate brief

may result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v.

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007), appeal denied, 982 A.2d

509 (Pa. 2007) (citation omitted). “[A]rguments 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).

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Instantly, the argument section of Mother’s brief, although raising

several claims of due process violations, only cites cases that support the

general principles of law that guide this Court in analyzing due process claims,

one Commonwealth Court case, and only one pertinent case, which is relevant

only to her claim of bias. (See Mother’s Brief, at 15, 19, 33-34). She then

reviews certain of the evidence presented and cites to the transcripts of the

various hearings to argue that the trial court deprived her of her substantive

and procedural due process rights. (See id. at 15-41). Mother does not,

however, apply the law she cites to the facts of the case to develop a legal

argument that supports her issue (other than to her bias claim). Therefore,

her first issue is waived on this basis, as well. See Beshore, supra at 1140;

Lackner, supra at 29-30.

Moreover, Mother’s issue would not merit relief.

When confronted with a constitutional challenge premised
upon substantive due process grounds, the threshold inquiry is
whether the challenged statute purports to restrict or regulate a
constitutionally protected right. . . .

Khan v. State Bd. of Auctioneer Examiners, 842 A.2d 936, 945 (Pa. 2004).

In this case, Mother claims that her “substantive due process rights were

violated when the [t]rial [c]ourt drastically reduced her physical custody of

[Child] to a shocking twenty-two hours per month including no overnights,

amounting to less than one day per month with [Child].” (Mother’s Brief, at

16). In other words, the gravamen of Mother’s complaint is that the trial court

erred or abused its discretion in the way it applied our laws and rules of

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procedure. Nothing in Mother’s argument is a challenge to the laws and rules

themselves. Hence, Mother’s substantive due process claim would lack merit.

In terms of procedural due process, government is prohibited from
depriving individuals of life, liberty, or property, unless it provides
the process that is due. While not capable of an exact definition,
the basic elements of procedural due process are adequate notice,
the opportunity to be heard, and the chance to defend oneself
before a fair and impartial tribunal having jurisdiction over the
case. Thus, courts examine procedural due process questions in
two steps: the first asks whether there is a life, liberty, or property
interest that the state has interfered with; and the second
examines whether the procedures attendant to that deprivation
were constitutionally sufficient.

Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013), cert. denied, 134

S. Ct. 1771 (2014) (citation omitted).

Here, Mother claims that her procedural due process rights were violated

because the trial court was biased, rushed her attorneys, impermissibly

limited her testimony to two hours and forty-five minutes, restricted her new

attorney’s access to the record and the transcripts of the prior days of

testimony, and refused to hear testimony from Child’s treating physicians.

(See Mother’s Brief, at 19-41). However, the hearing transcripts bely these

allegations.

The trial court devoted almost five full days to this matter that generated

over seven hundred and sixty pages of transcript. Of the witnesses who

testified, Father called one and Mother called four, one of whom the trial court

permitted to testify by video from Germany. Two attorneys represented

Mother over the course of the hearings. Mother engaged the second attorney,

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at the last minute, for the last day of the trial. Therefore, Mother had a more

than adequate opportunity for the court to hear her case.

For example, Mother cites to an instance in the transcript of March 29,

2017, where the trial court urged Mother’s counsel to move the matter along:

THE COURT: I’m very unhappy at how long this is taking. It’s not
fair.

[MOTHER’S COUNSEL]: And I’m very unhappy that it’s taking this
long, too, Your Honor.

THE COURT: [Mother’s Counsel] this cross-examination has not
been well prepared in terms—you have a lot of documentation,
this should not have taken this long. We need to get this case
moved, please.

[MOTHER’S COUNSEL]: Well, Your Honor, I agree that it’s taken
an inordinately long amount of time. I do also agree that, you
know, again, as I have said many times, this is like a capital
murder case to me.

THE COURT: I don’t want a speech. Move on to your next
question.

[MOTHER’S COUNSEL]: Well, I do want—

THE COURT: [Mother’s Counsel] I don’t want a speech. Move on
to the next question. Thank you.

(Mother’s Brief, at 20-21) (citing N.T. Hearing, 3/29/17, at 157-58.)

We have examined this exchange in context and we find that the trial

court was acting within the discretion granted to it by Pennsylvania Rule of

Evidence 611 to avoid the wasting of time. See Pa.R.E. 611.

Mother next complains that the trial court denied her procedural due

process by limiting her testimony to 2 hours and 45 minutes. However, she

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does not tell us what evidence she was prevented from presenting or

otherwise how the limitation denied her an opportunity to be heard. Again,

we have examined the relevant exchange in context and we find that the trial

court was acting within the discretion granted to it by Pa.R.E. 611 to avoid the

wasting of time.

Also, our examination of the record reveals that the restrictions the trial

court placed on the parties’ ability to examine the record were reasonable.

Neither party complained about these restrictions until Mother engaged new

counsel for the final day of trial. On April 6, 2017, the trial court entered an

order sealing the record and permitting access by viewing the record in her

chambers.

The trial court explains:

[A]ccess to the file, the transcripts and the record were
available at all relevant times. It was made expressly clear to
both Counsel that either party or attorney may view the
transcripts and file at any time, by scheduling such a time with
Chambers with reasonable notice to allow the [c]ourt to make
arrangements. Prior Counsel [Counsel representing Mother on all
but the last day of the hearings] was aware of these incidents and
fully cooperated with the April 6, 2017, Order with no argument
or opposition.

This [c]ourt was more than accommodating to both Prior
Counsel and Mother with respect to the amount of time provided
for each to review prior transcripts. Trial [c]ourt’s Chambers
scheduled adequate time, reserved a private room in the
Courthouse for a quiet and undisruptive environment, and
provided both [t]rial [c]ourt’s Law Clerk and a member of the
Court tipstaff to supervise. (There was concern that Mother would
attempt to take photographs on her cell phone of the transcripts.)
While a certain date and time was scheduled for Prior Counsel and
Mother to come in and review the transcripts, Judge’s Chambers

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made it clear to both Prior Counsel and Mother that they could
take as much time as they needed. On April 13, 2017, Prior
Counsel and Mother reviewed prior transcripts and took notes for
approximately six hours while the [c]ourt’s Law Clerk and one
member of the tipstaff supervised. At the end of the day, Prior
Counsel informed the Law Clerk that he was finished reviewing
everything, and thanked him for providing extra time to finish.
However, Mother indicated that she was not finished and needed
more time to review. Therefore, more time was given to Mother
to come back on April 20, 2017. Once again, the Law Clerk and a
member of the tip staff sat with Mother for approximately three
hours while Mother finished reading all prior transcripts. Mother
then indicated she was finished, and thanked the Law Clerk for
allowing her the time to review the record.

Though possibly encountering a slight inconvenience from
the April 6, 2017, Order sealing the record and indicating the
process by which to review the transcripts, more than adequate
time was designated to Prior Counsel and Mother to review all
prior transcripts in advance of the April 21, 2017, hearing. The
[c]ourt determined the Order sealing the record was
unquestionably necessary. Lastly, it was not the [c]ourt’s decision
to dismiss Mother’s counsel who represented Mother for the first
three hearings, leaving only minimal time for [New] Counsel to
review the record. Any inconvenience associated with Mother’s
decision to retain new counsel in the middle of her custody hearing
cannot justifiably be attributed to the [c]ourt, and certainly does
not amount to any abuse of discretion or violation of Mother’s due
process rights.

(Trial Court Opinion, 8/14/17, at 28-29).

We conclude that the trial court’s explanation supported its decision.

New counsel was necessarily unfamiliar with the record of the case and who

would, even if the record were not sealed and subject to viewing restrictions,

have had a difficult time familiarizing herself with the case. Counsel’s difficulty

in familiarizing herself with the record was the direct result of Mother’s

dismissal of counsel who was familiar with the record and the hiring of one

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who was not. The trial court did not deny Mother her due process rights by

restricting access to the record.

Next, Mother failed to raise her issue regarding the exclusion of the

treating physicians’ testimony in her statement of errors complained of on

appeal. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”).2

Mother next complains that her “procedural due process rights were []

violated because she did not have the opportunity to defend herself before a

‘fair and impartial tribunal’ due to the [t]rial [c]ourt’s pervasive bias against

[her].” (Mother’s Brief, at 33). Once again, we find that Mother has waived

this issue because she failed to raise it in her concise statement of errors

complained of on appeal and she fails to identify where she raised the issue

at trial of this matter. (See id. at 33-41; Statement of Errors Complained of

____________________________________________

2 We briefly note that “[e]videntiary rulings are committed to the sound
discretion of the trial court, and will not be overruled absent an abuse of
discretion or error of law.” Branham v. Rohm and Haas Co., 19 A.3d 1094,
1109 (Pa. Super. 2011), appeal denied, 42 A.3d 289 (Pa. 2012) (citation
omitted). Here, Mother has not sustained her burden by showing that the
alleged errors were harmful and prejudicial to her, and therefore an abuse of
the court’s discretion. (See Mother’s Brief, 41-46). In fact, as admitted by
Mother, the trial court, “in an effort to streamline the case and make
stipulations, if possible,” asked counsel for both parties “to stipulate to the
entry of the emergency room records regarding the alleged sexual abuse and
[] pediatrician records without calling the physicians named in the reports.”
(Mother’s Brief, at 28) (citing N.T. Hearing, 3/06/17, at 91-92). This was
within the court’s discretion. See Branham, supra at 1109. Therefore, her
argument would not merit relief.

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on Appeal, at unnumbered pages 1-4); see also Pa.R.A.P. 1925(b)(4)(vii);

Pa.R.A.P. 2119(e) (appellant must identify place in record where objection

raised).

Moreover, we have reviewed the record, and we can discern no bias

against Mother on the part of the trial court. “Adverse rulings alone do not

establish the requisite bias warranting recusal, especially where the rulings

are legally proper.” Arnold v. Arnold, 847 A.2d 674, 681 (Pa. Super. 2004)

(citation omitted). In addition, ”[i]n order to find that the trial court’s

evidentiary rulings constituted reversible error, such rulings must not only

have been erroneous but must also have been harmful to the complaining

party.” Branham, supra at 1109 (citation omitted). Here, Mother has failed

to establish trial court bias. Therefore, Mother’s claim would lack merit even

if not waived. For all of these reasons, Mother’s first issue is waived and

would lack merit.

In her second issue, Mother asserts that the trial court erred when it

admitted speculation and hearsay testimony from Father’s witnesses. (See

Mother’s Brief, at 41-46). Mother waived this issue.

It is well-settled that “[w]hen a court has to guess what issues an

appellant is appealing, that is not enough for meaningful review. . . . In other

words, a Concise Statement which is too vague to allow the court to identify

the issues raised on appeal is the functional equivalent of no Concise

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Statement at all.” Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.

Super. 2001) (citation omitted).

Here, in her Rule 1925(b) statement, Mother fails to identify exactly

where in the record the trial court allegedly admitted hearsay, complaining

only that the “trial court committed reversible harmful error by allowing into

evidence and considering on multiple occasions, over objection, rampant

speculation and hearsay.” (Statement of Matters Complained Of, 6/12/17).

Therefore, Mother’s issue is waived.

Moreover, it would not merit relief.

Pennsylvania Rule of Evidence 602 provides, in pertinent part, that:

A witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge
may consist of the witness’s own testimony. . . .

Pa.R.E. 602.3

Pennsylvania Rule of Evidence 801(c) defines hearsay as a statement

that:

(1) the declarant does not make while testifying at the current
trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.

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3 Mother’s reliance on Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968) and
Winschel v. Jain, 925 A.2d 782, 797 (Pa. Super. 2007), in support of her
speculation argument, (see Mother’s Brief, at 41), is not legally persuasive
where both cases involved the type of data on which expert opinion testimony
must be based.

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Pa.R.E. 801(c).

As a general rule, hearsay is inadmissible, because such evidence
lacks guarantees of trustworthiness fundamental to our system of
jurisprudence. The rule against admitting hearsay evidence stems
from its presumed unreliability, because the declarant cannot be
challenged regarding the accuracy of the statement. Notably, it
is elemental that, [a]n out of court statement which is not offered
for its truth, but to explain the witness’ course of conduct is not
hearsay.

In re K.A.T., Jr., 69 A.3d 691, 702 (Pa. Super. 2013), appeal denied, 81 A.3d

78 (Pa. 2013) (citations and quotations marks omitted).

Instantly, the examples of the alleged improper admission of hearsay

and speculation offered in Mother’s brief do not demonstrate violations of

either the hearsay rule or the prohibition on speculation. (See Mother’s Brief,

at 41-46). The testimony to which Mother points in her brief focuses on

questions asked of Father at the hearing, and answers that would have related

to the PFA order against Mother and her medical judgment and decision-

making with regard to Child. (See Mother’s Brief, at 42-46). The trial court

was aware that Father had been granted a PFA order against Mother, and that

Dr. Frajerman had reported his concerns regarding Mother’s medical judgment

and decision-making as to Child.

Even if any of the testimony to which Mother objects is considered

speculative and/or hearsay, the trial court was fully aware of Father’s PFA

order against Mother, and is presumed to have disregarded any inadmissible

evidence. See Commonwealth v. Galindes, 786 A.2d 1004, 1014 (Pa.

Super. 2001), appeal denied, 803 A.2d 733 (Pa. 2002) (explaining that trial

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court, when acting as fact finder, is presumed capable of disregarding

inadmissible evidence). Moreover, when considering section 5328(a) custody

factors, the weight the trial court assigned this evidence, as well as all the

other section 5328(a) factors, cannot be disturbed by this Court. See E.D. v.

M.P., 33 A.3d 73, 76 (Pa. Super. 2011). We, therefore, can discern no error

or abuse of discretion on the part of the trial court and Mother’s second issue

would lack merit.

Accordingly, for the reasons stated, we affirm the order of the Court of

Common Pleas of Bucks County in this matter entered May 17, 2017.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/24/18

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