J-S31032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.M., II, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
A.T.S., : No. 398 EDA 2018
Appellee :
:
and K.S. AND P.S., :
:
Interested Parties :
Appeal from the Order Entered December 29, 2017
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
No. 2008-FC-0049
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 18, 2018
Appellant P.M., II (“Father”) appeals pro se from the Order granting A.T.
S. (“Mother”) sole legal custody of the parties’ minor Child, G.N.S. The Order
also denied Father’s Petition for Modification, and granted Father’s Petition for
Contempt. After careful review of the record, we adopt the well-written,
comprehensive Opinion,1 authored by the Honorable Michele A. Varricchio of
the Lehigh County Court of Common Pleas, as our own and affirm.
____________________________________________
1 Although titled a “Pa.R.A.P. 1925(a) Statement,” it is actually an Opinion
filed pursuant to Pa.R.A.P. 1925(a).
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Our review of the certified record supports the detailed recitation of the
factual and procedural history of this case provided by the trial court and we
need not repeat it in detail. See Trial Ct. Op., dated 2/26/18, at 1-7. In sum,
Child was born in June 2002, six months after Father left Mother to move to
Florida in order to escape prosecution for multiple DUIs. Father had sporadic
visits with the Child in 2003.
Nearly three years later, when the Child was four years old, Father
returned to Pennsylvania to live. Father and the Child gradually became
acquainted with the assistance of Maternal Grandfather.2
In January 2008, Father filed his first petition seeking shared custody.
In December 2008, the court granted Father ten overnight visits each month.
The court also ordered that the Maternal Grandparents would have one week
of uninterrupted vacation with the Child each summer.
In 2009, when the Child was seven years old, the court modified Father’s
custody schedule because Father had failed to contact the Child for the first
three months of 2009 and saw the Child only three times between April and
June 2009. In October 2010, the court entered a Final Custody Order, upon
agreement of the parties, providing regular weekly physical custody to Father.
The Order provided, inter alia, that every other week Father would pick up the
Child from the home of the Maternal Grandparents on Sundays and take the
____________________________________________
2Maternal Grandparents, K.S. and P.S., are listed in the caption of this matter
as Interested Parties.
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Child to school the next day. The Order retained the one-week summer-
vacation custody arrangement for the Maternal Grandparents.
In January 2011, the court entered an Order expanding Father’s partial
custody rights in alternate weeks and during school holidays. The court
retained the provision granting Maternal Grandparents’ one-week summer
vacation period.
In October 2011, when the Child was nine years old, Father relocated
to Florida. The parties agreed on a partial custody schedule so Father could
spend time with the Child during alternating holidays and school breaks.
However, during the December 2011 holiday break, Father got drunk in front
of the Child and became involved in a fight where Father’s throat was cut.
Mother filed a Petition to Modify and on August 29, 2012, the court entered a
Custody Order restricting Father’s time with Child to supervised visits until
Father completed a drug and alcohol evaluation and filed a Petition for
Modification.
Father filed a Petition to Modify Custody in January 2013, and the parties
agreed to a partial physical custody schedule for the Child to visit Father in
Florida and in Lehigh Valley over Christmas vacation. On February 27, 2014,
the Court entered another agreed-upon Final Custody Order granting Father
partial physical custody for one month in the summer and a portion of
Christmas and Spring breaks. The court removed the requirement that Father
have supervision during his custody periods.
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On November 12, 2015, Father filed a Petition for Modification seeking
primary custody of the Child, who was then 13 years old, due to Child’s
slipping grades, inappropriate pictures and video games, and the Child’s
alleged drug and alcohol use. The court held a custody trial on May 6, 2016,
after which it denied Father’s Petition to Modify, but again granted Father one
month in the summer and portions of school breaks.
On July 3, 2017, when the Child was fifteen years old, Father filed the
instant Petition for Modification, again seeking primary custody, and a Petition
for Contempt. The court held a hearing on December 21, 2017, at which
Father represented himself.
At the beginning of the hearing, the presiding judge noted that she had
interviewed the Child in camera, and he had clearly stated that he did not
want to move to Florida. See N.T., 12/21/17, at 3. The court heard testimony
from Mother, Father, Maternal Grandparents, Paternal Step-Grandmother,
Paternal Great Aunt, Father’s wife, and Mother’s paramour. Following the
hearing, the court orally delivered its analysis of the sixteen custody factors
set forth in 23 Pa.C.S. § 5328(a). See N.T. - Analysis of Factors, 12/21/17.
On December 29, 2017, the Court entered a Final Order granting
Father’s Petition for Contempt and denying Father’s Petition for Modification.
The court annexed a copy of the transcript from the hearing providing its
analysis of the sixteen custody factors. See Final Order, dated 12/29/17. In
its Order, the court (1) ordered Mother to pay $300.00 to Father as a contempt
sanction; (2) granted Mother sole legal custody and primary physical custody;
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(3) granted Father periods of partial physical custody as the parents may
agree, and delineated school break visits in the event the parties cannot
agree. Id.
Father filed a pro se Notice of Appeal on January 23, 2018. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Father raises the following issues for our review in his pro se Brief:
1. Whether the trial court erred or abused its discretion when it
overruled Father’s objection averring that Maternal Grandparents
lack standing for any form of custody and its conclusion that
Maternal Grandparents stand “in loco parentis” to Child despite
lacking consent of Father.
2. Whether the trial court erred or abused its discretion failing to
consider all the custody factors set forth in 23 Pa.C.S [] § 5328(a),
and by failing to account for the required factors in reaching its
decision[.]
3. Whether the trial court erred or abused its discretion by
denying Father’s petition to modify, after Mother and Maternal
Grandparents testified that Mother has in fact relinquished her
parental duties of Child to Maternal Grandparents and that Mother
no longer has primary physical custody of Child.
4. Whether the trial court erred or abused its discretion by merely
ordering a special provision of custody to continue to allow Child
to reside with Maternal Grandparents whom live in another school
district, and thus giving Maternal Grandparents primary physical
custody, over Father’s right of custody, ultimately violating
Father’s right to due process. “The right to parent is a
fundamental right that deserves the most protection afforded to
individuals.” Id., at 65, 120 S.Ct. 2054.
5. Whether the trial court erred or abused its discretion by
concluding Father’s reward for legal fees and transportation costs
amounted to $300.00.
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6. Whether trial court erred or abused its discretion in suppressing
testimony of Father’s witnesses, Father avers the testimony
suppressed would have provided proof of the contentious behavior
of the Maternal Grandfather and his attempts to alienate Child
from Father as outlined in Father’s pretrial statement.
7. Whether the trial court erred or abused its discretion by failing
to include evidence that was included in Father’s exhibits.
Appellant’s Brief at 11-13 (Answers omitted).
Standards of Review
When reviewing child custody matters, our standard of review is well
settled:
Our paramount concern and the polestar of our analysis in this
case, and a legion of prior custody cases is the best interests of
the child. The best interests standard, decided on a case-by-case
basis, considers all factors which legitimately have an effect upon
the child's physical, intellectual, moral and spiritual well-being.
On appeal, our scope of review is broad in that we are not bound
by deductions and inferences drawn by the trial court from the
facts found, nor are we required to accept findings which are
wholly without support in the record. On the other hand, our
broad scope of review does not authorize us to nullify the fact-
finding function of the trial court in order to substitute our
judgment for that of the trial court. Rather, we are bound by
findings supported in the record, and may reject conclusions
drawn by the trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial court.
Further, on the issues of credibility and weight of the evidence,
we defer to the findings [of] the trial judge. Additionally, appellate
interference is allowed only where it is found that the custody
order is manifestly unreasonable as shown by the evidence of
record.
Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
This Court may not interfere with a trial court’s conclusions unless they
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“represent a gross abuse of discretion.” Luminella v. Marcocci, 814 A.2d
711, 716 (Pa. Super. 2002).
The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, governs all custody
proceedings commenced after January 24, 2011. E.D. v. M.P., 33 A.3d 73,
77 (Pa. Super. 2011). A trial court must consider sixteen custody factors
when deciding a Petition for Custody. See 23 Pa.C.S. § 5328(a).
Our Supreme Court has explained, “[a]lthough the express wishes of a
child are not controlling in custody decisions, such wishes do constitute an
important factor that must be carefully considered in determining the child's
best interest.” McMillen v. McMillen, 602 A.2d 845, 847 (Pa. 1992) (citation
omitted). Further, “[t]he child's preference must be based on good reasons,
and the child's maturity and intelligence must be considered.” Id. Finally,
“[t]he weight to be given a child's testimony as to his preference can best be
determined by the judge before whom the child appears.” Id.
With respect to Appellant’s last two issues raising evidentiary
challenges, we note the following standard of review:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the trial
court upon a showing that it abused its discretion or committed
an error of law. A trial court has wide discretion in ruling on the
relevancy of evidence and its rulings will not be reversed absent
an abuse of discretion.
B.K. v. J.K., 823 A.2d 987, 991–92 (Pa. Super. 2003) (internal citations
omitted).
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Adoption of Pa.R.A.P. 1925(a) Opinion
As noted above, Judge Varricchio carefully and thoroughly reviewed and
thoughtfully analyzed each issue raised by Appellant, with accurate reference
to the record, citation to governing statutory law, and discussion of dispositive
case law. Our careful review of the record supports the trial court’s disposition
and we discern no abuse of discretion. Accordingly, we adopt the court’s Rule
1925(a) Opinion as our own and affirm the December 29, 2017 Custody Order.
See Tr. Ct. Op., filed 2/26/18 (concluding: (1) contrary to Appellant’s
contention, the court analyzed the sixteen custody factors on the record and
annexed the transcript of that hearing to the Order, id. at 2-3; (2) recognizing
the strong psychological bond between the Child and Maternal Grandparents,
but noting that Maternal Grandparents did not seek and were not awarded
any amount of custodial time in the court’s December 27, 2017 Order, id. at
7-9; (3) noting Mother and Maternal Grandparents have for years shared
parenting responsibilities of Child without objection from Father; Mother has
not abandoned Child while he lives at Maternal Grandparents’ home which is
one mile from Mother’s home: Mother sees Child daily, Child spends the
weekends at Mother’s home, Maternal Grandfather, a lifelong educator,
provides educational and emotional support to Child while Child attends school
in Salisbury School District; id. at 9-13; (4) referencing its analysis of the
sixteen custody factors, and recognizing Father’s “great strides in his life” and
his relationship with Child, but concluding that uprooting Child “from his
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community, immediate and extended family, and boy scout troop where he is
working on becoming an eagle scout, to move him to Florida for his final 2 and
½ years of high school” would not be in the Child’s best interests, id. at 9-10;
(5) concluding that the $300 contempt sanction imposed on Mother was
proper because Father did not present proof of his legal fees or travel
expenses timely and the sanction was appropriate pursuant to 23 Pa.C.S. §
5323(g)(1)(ii) for Mother’s willful failure to comply with the prior court order,
id. at 15-16; (6) concluding that the court (a) did not err in precluding the
child’s great-aunt from providing what would have been expert testimony, and
(b) did not restrict Father from asking questions about Maternal Grandfather
of any witness or from presenting his own testimony about his relationship
with Maternal Grandfather, id. at 16-19; (7) observing that Father had
annexed many exhibits, including email exchanges and letters, to his Petition
to Modify and Petition for Contempt that were considered by the court as part
of the judicial record but which Father failed to move into evidence at trial;
detailing Father’s nine exhibits that were marked at trial, noting six exhibits
were excluded on hearsay grounds or for other technical reasons, id. at 20-
25).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/18
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