J-A08030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.F.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
M.A.D. : No. 3200 EDA 2017
Appeal from the Order August 31, 2017
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2007-26322
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 13, 2018
J.F.D. (Father) appeals, pro se, from the order, entered in the Court of
Common Pleas of Montgomery County, granting M.A.D. (Mother) primary
physical custody and sole legal custody of the parties’ two minor daughters,
ages ten and twelve.1 We affirm.
The parties were married in 2005; they separated shortly after and
Father filed a custody complaint before the birth of their younger child. As
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1 The order, dated August 31, 2017, provided that: Mother shall have sole
legal custody of the children; the parties shall not attend any medical
appointment at the same time; the parties shall not attend any school
functions at the same time under any circumstance; the parties shall not
attend extra-curricular activities (i.e. cheerleading, gymnastics, swimming,
theater, soccer, etc.) at the same time under any circumstance; Mother shall
have primary physical custody of the two minor children; Father shall enroll
in an anger management course; and, all prior custody orders entered
between the parties are vacated. Order, 8/31/17. We note Mother has not
filed an appellee’s brief.
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* Retired Senior Judge assigned to the Superior Court.
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the trial court states, the parties have been extremely litigious over the past
ten years, the court noting that there have been “no less than ten Protection
From Abuse [PFA] proceedings involving the parties during the past ten years
(with Father being the filing party in four of the five most recent ones).” Trial
Court Opinion, 12/8/17, at 2.
In August 2011, following custody conciliation, the parties agreed to a
shared custody schedule with primary custody in Mother, and a limited
custody schedule for Father. The court entered the parties’ stipulation.
Father’s custody was eventually expanded to a 50/50 schedule. In April 2012,
Mother filed a motion to modify custody, seeking to reduce Father’s custody
time or, alternatively, restructure the schedule so the children would not be
away from one parent for almost an entire week. Thereafter, in July 2012,
the parties were ordered to participate in a custody evaluation, and the court
held a three-day protracted hearing. On November 12, 2013, the final day of
the hearing, the court entered an order, on the record, affirming the 50/50
schedule. Thereafter, on December 26, 2013, the court entered an additional
order, this one pertaining to holiday and vacation custody; the order was
incorporated into the November 12, 2013 order.
On April 15, 2015, Father filed a contempt petition. The court, following
a telephone conference, directed the parties to attend co-parenting
counseling. A hearing was held in May 2016 on Father’s contempt petition.
During that hearing, the parties entered into an agreed order. Thereafter, the
parties filed cross-motions for modification, and on January 9, 2017, the court
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entered an interim order directing the parties to enroll the children in therapy.
Following several more petitions for contempt and a protracted hearing, which
included over 20 hours of testimony and in camera interviews of both children,
the court stated it would keep the record open until it received the children’s
therapist’s report.
On August 31, 2017, the court entered a fifteen-page custody order, as
well as findings of fact and an analysis of the statutory factors pursuant to 23
Pa.C.S.A. § 5328. Father appealed, and the court ordered him to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Father
complied with the court’s order on October 23, 2017.
Father raises twelve issues on appeal:
1. Did the trial court abuse its discretion by entering an order
that failed to consider the reasonable concerns and requests
of the children?
2. Did the trial court abuse its discretion by entering an order
that failed to consider the hundreds of documented custody
order violations committed by Mother, for which the court
established a May 31, 2016 agreement petition for contempt
against Mother?
3. Did the trial court abuse its discretion by entering an order
that failed to consider the dozens of documented custody
order violations by Mother after the May 31, 2016 agreement
petition for contempt?
4. Did the Trial Court abuse its discretion by entering an order
which failed to honor and uphold the May 31, 2016 Agreement
Petition for Contempt?
5. Did the trial court abuse its discretion by entering an order
based in part on communications from third-party
professionals notwithstanding evidence that runs contrary to
those communications?
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6. Did the trial court abuse its discretion by entering an order
that failed to allow Father to complete his testimony, cross-
examination [and] rebuttal?
7. Did the trial court abuse its discretion by entering an order
that failed to conclude that Mother’s continued substance
abuse issues raised by the children, as well as by the police
and other third parties, presents a genuine risk to the
children’s safety?
8. Did the trial court abuse its discretion by entering an order
that failed to conclude that the evidence presented
demonstrates Father’s consistent willingness to follow, and
adherence of, the custody order, including the “Custody-
General Rules of Conduct” and “Joint Legal Custody?”
9. Did the trial court abuse its discretion by entering an order
that failed to conclude that the evidence presented shows the
Mother’s consistent refusal to follow the Custody Order,
including the 'Custody – General Rules of Conduct' and 'Joint
Legal Custody'?
10. Did the Trial Court abuse its discretion by entering an Order
which failed to conclude that the evidence presented
demonstrates Father's ongoing attempts to co-parent and
Mother's ongoing refusal to co -parent?
11. Did the Trial Court abuse its discretion by entering an Order
which failed to conclude that the evidence presented shows
the Mother's actions, not the Father's, amount to systematic
parent alienation?
12. Did the trial court abuse its discretion by entering an order
based in part on ex parte communications from and on behalf
of Mother?
Appellant’s Brief, at 9-13.
In any custody case decided under the Custody Act, 23 Pa.C.S.A. §§
5321 et seq., the paramount concern is the best interests of the child. See
23 Pa. C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon
petition, a trial court may modify a custody order if it serves the best interests
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of the child. 23 Pa.C.S.A. § 5338; see also E.D. v. M.P., 33 A.3d 73, 80–81
n.2 (Pa. Super. 2011). Section 5328(a) sets forth a list of statutory factors2
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2 § 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.
(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.
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that the trial court must consider when making a “best interest of the child”
analysis under the statute.
Our scope and 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
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(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).
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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., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
See also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015). This Court
has held that
the 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) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). Further, on issues of
credibility and weight, we defer to the trial court, which has had the
opportunity to observe the proceedings and demeanor of the witnesses.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009).
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.
Id. (internal citations omitted).
At the core of this custody case is the palpable acrimony between the
parties, the trial court’s serious concerns that Father is attempting to alienate
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the minor children from Mother and the resulting emotional harm to the
children. It is clear both parents love their children and provide well for them;
however, failure to consider how “high conflict” and the inability to co-parent
impacts the children is not only short-sighted, but incomprehensible to this
Court. As the trial court notes, the fact that the parties cannot maintain a
minimum level of cooperation weighs against a shared custody arrangement.
See Findings of Fact, supra at 7 n.5, citing Yates v. Yates, 963 A.2d 535,
542 (Pa. Super. 2008). The court noted that Paul Bukovec, Director and
Clinical Supervisor of Menergy, reported that Father had acknowledged being
“domineering, entitled, argumentative, contemptuous, loud, critical,
ridiculing, and belittling,” and, the court noted, after 19 co-parenting sessions,
“[l]ittle has changed[.]” Findings of Fact, supra at 12. Father has been
described by Dr. Gerald Bellettirie, a psychologist of 36 years who was
assigned as the co-parenting specialist, as “extremely controlling and
arrogant,” id. at 16, 19, and exhibiting a serious lack of empathy. Id. at 16.
Dr. Gerald Cooke, Ph.D., who performed the parties’ custody evaluation,
provided a detailed clinical observation of “narcissistic behavior and a sense
of entitlement on the part of Father.” Id. at 20.3 Father belittles Mother,
attempts to “program” the children’s therapy sessions, and believes he knows
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3 In his report, Dr. Bellettirie stated that illustrative of Father’s attitude is his
statement that “Judge Tolliver is an idiot, Dr. Cooke is incompetent, Laurent
Potts is incompetent and Judge Clifford makes knee-jerk reactions.” Report
of Dr. Bellettirie, 10/10/16, at 5. Notably, Dr. Bellettirie asked to be relieved
of this assignment.
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better than the professionals and judicial officials. With this backdrop, the
court’s concerns that Father’s pattern of conduct is symptomatic of parental
alienation is not without basis.
After our review of Father’s brief on appeal, the record and the relevant
law, we conclude that Father’s claims are meritless. The Honorable Daniel J.
Clifford’s opinion and findings of fact provide a careful and detailed
examination of the evidence and a comprehensive analysis of each of the
section 5328(a) custody factors and each of Father’s claims on appeal. See
Findings of Fact, 8/31/17, at 1-22, and Trial Court Opinion, 12/8/17, at 8-30.
We find no abuse of discretion or error in the trial court’s findings of fact and
custody analysis, and, therefore, we affirm the court’s order based on Judge
Clifford’s opinion. Ketterer, supra. We direct the parties to attach a copy of
Judge Clifford’s opinion in the event of further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/18
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