E.H, Jr. v. Y.R.

J-A18043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.H., Jr. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
Y.R. :
:
Appellant : No. 347 WDA 2020

Appeal from the Order Entered February 13, 2020
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD-11-008436-009

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 15, 2020

Y.R. (“Mother”) appeals from the order entered February 13, 2020, in

the Court of Common Pleas of Allegheny County, awarding E.H., Jr. (“Father”),

primary physical custody of the parties’ sons, E.H. III, born in April 2004, and

E.H., born in June 2006 (collectively, “the Children”). After careful review, we

affirm.

Mother and Father married in 2003, separated in 2011, and divorced in

2013. N.T., 1/30/20, at 7. Following separation, the parties entered into a

written agreement providing they would share physical custody of the Children

equally. Id. at 20-22. Although the parties had their agreement notarized,

they did not seek to have it entered as an order of court. Id. The parties

shared custody of the Children without court intervention until Father filed a

petition for special relief on August 8, 2017. He averred that Mother enrolled

the Children in a new school during the summer of 2015 without consulting or
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informing him, and that Mother was now removing E.H. from that school and

enrolling the child in yet another school over his objection. Father requested

an order directing that the Children remain in their current school during the

upcoming academic year. The court granted the petition that same day.

Subsequently, Father filed a complaint for custody on October 2, 2018,

requesting shared legal and primary physical custody of the Children. The

trial court entered an order on December 2, 2019, scheduling a hearing on

Father’s complaint and directing that the parties file pre-trial statements.

Father’s counsel served Mother with a copy of the order on December 5, 2019.

However, Mother did not obtain legal counsel and did not timely file a pre-trial

statement.

The trial court began the custody hearing on January 30, 2020. Mother

did not appear at the time scheduled for the start of the hearing. The court

explained that Mother had contacted its office the previous day and spoken to

the court reporter. Id. at 3-4. Mother informed the court reporter that she

wanted to continue the hearing to obtain legal counsel and “to go to Alabama

where her father is ailing.” Id. at 4. She also stated that she “wanted to file

something.” Id. The court reporter then suggested to Mother that she should

appear at the hearing and present her request for a continuance at that time.

Id. Father’s counsel objected to any continuance and the hearing proceeded

in Mother’s absence. Id. at 5-6.

The hearing consisted entirely of Father’s testimony, which he used to

present Mother as irresponsible and derelict in her parental duties. Father

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testified that Mother’s former employer laid her off in 2009, and that she had

not held a full-time job since. N.T., 1/30/20, at 15. According to Father,

Mother became preoccupied with becoming a Hollywood producer and often

traveled while leaving the Children in his care. Id. at 15-16. After the parties’

separation, Mother remained unstable and appeared to struggle financially.

Father reported that Mother declared bankruptcy and had been involved in

three foreclosure proceedings. Id. at 136-37. He added that Mother receives

occasional shut-off notices for her utilities. Id.

More significantly, Father testified that Mother continues to travel, and

that she sometimes leaves the Children unattended or with people they do not

know. Id. at 112-26, 156. Father recalled that, on one occasion, he asked

his sister and niece to check on the Children at Mother’s home. Id. at 126.

When the sister and niece arrived, at 7:30 or 8:00 p.m., the Children were

wearing pajamas and Mother was not present. Id. Moreover, the Children

had not eaten since having cereal in the morning. Id. The sister and niece

left Mother’s home at midnight, and Mother still had not arrived. Id. at 126-

27.

Father expressed particular concern that Mother’s behavior was harmful

to the Children’s education. Father testified that the Children are often late

to school while in Mother’s care and that she is prone to taking them out of

school for inadequate reasons. Id. at 60-73. He described one incident during

which E.H., III, was punished at school because of his possible cheating on a

homework assignment. Id. at 76. Mother had plans to take E.H., III, to Texas

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to play in a basketball tournament, but Father insisted that E.H., III, should

not get to play as additional punishment for his possible cheating. Id. at 77-

79. Mother countered that E.H., III, should go to Texas because a cousin of

the Children’s maternal grandmother had died, the maternal grandmother was

going to Texas, and seeing E.H., III, would lift the maternal grandmother’s

spirits. Id. at 79. Father contacted the maternal grandmother, who informed

him that she was going to North Carolina and not Texas. Id. at 80. When

confronted with this information, Mother claimed that she had her weekends

“mixed up” and apparently agreed not to take E.H., III, to Texas. Id. at 80-

82. The next morning, however, Mother sent Father a text message indicating

that she was taking E.H., III, to Texas after all and had already removed him

from school. Id.

Finally, Father testified that Mother is uncooperative and interferes with

his custody time. He maintained that Mother always appears late for custody

exchanges and keeps the Children well past their exchange time without his

agreement. Father explained that the designated exchange time is 8:30 p.m.

on Sunday, but that Mother has returned the Children to his care as late as

midnight when they have to be up for school the next morning. Id. at 22-27.

Mother sometimes fails to return the Children entirely and Father contacts her

only to discover that she and the Children are “in another state traveling.” Id.

at 23-24. Similarly, Father testified that he and Mother agreed she could

spend three weeks of vacation with the Children during the summer months,

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but that Mother often keeps the Children for four or six weeks, and on one

occasion kept them “the majority of the summer.” Id. at 28-31.

During Father’s testimony, the trial court received word that Mother had

gone to the wrong location for the hearing. Id. at 44-45. Mother arrived at

the correct location near the conclusion of Father’s direct examination. Id. at

141. Mother maintained that her initial failure to appear at the correct location

was an honest mistake and requested that the court continue the matter so

that she could obtain legal counsel. Id. at 142-46. She insisted that she was

“discombobulated” due to her parents’ serious health issues, which required

her to travel out of state. Id. at 145-46. The court denied Mother’s request

for a continuance but permitted her to cross-examine Father. Id. at 147, 150.

Following the hearing, on February 13, 2020, the trial court entered an

opinion and order based on Father’s testimony, awarding the parties shared

legal custody. The order also awarded primary physical custody to Father and

partial physical custody to Mother every other weekend from Friday at 5:00

p.m. to Sunday at 7:00 p.m. during the school year. During the summer, the

order awarded the parties shared physical custody, with weekly exchanges on

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Sunday at 7:00 p.m. Mother timely filed a notice of appeal on March 5, 2020,

along with a concise statement of errors complained of on appeal. 1, 2

Mother now raises the following claims for our review:

I. Does the trial court abuse its discretion, when it misapplies the
factors set forth within 23 Pa.C.S. [§] 5328, thereby rendering the
custody award unreasonable?

II. Does the trial court abuse its discretion, when it unreasonably
concludes that the record evidence supports a decrease in a
mother’s custody time?

III. Does the trial court abuse its discretion, when it does not
require the petitioner in a custody action to meet his burden of
proof?

IV. Does the trial court commit an error of law, when it instructs
a pro se litigant to file exceptions to a final order of court?

V. Does the trial court abuse its discretion, when it denies a pro
se litigant’s timely request for a continuance in order to obtain
legal counsel?

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1 In its opinion, the trial court describes the order of February 13, 2020, as an
“interim order.” Trial Court Opinion (“TCO”), 2/13/20, at 1. However, our
review of the record confirms that the court entered the order after completing
its hearings on the merits and that it intended the order to constitute a
complete resolution of the claims pending between the parties. Accordingly,
we conclude that the February 13, 2020 order was final and appealable. See
G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996) (“[A] custody order will
be considered final and appealable only if it is both: 1) entered after the court
has completed its hearings on the merits; and 2) intended by the court to
constitute a complete resolution of the custody claims pending between the
parties.”).

2Mother obtained counsel after the hearing. She filed a counseled notice of
appeal and remains represented on appeal.

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Mother’s Brief at 5 (trial court answers omitted).3

We consider Mother’s claims mindful of our standard of review:

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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

“When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors that trial courts must consider when awarding

custody are set forth at 23 Pa.C.S. § 5328(a), as follows:

____________________________________________

3 In his brief, Father proposes that this Court should dismiss Mother’s appeal
for noncompliance with our Rules of Appellate Procedure. Father observes
that Mother failed to file and serve a designation of the reproduced record
pursuant to Pa.R.A.P. 2154(c)(1), and failed to number her reproduced record
pursuant to Pa.R.A.P. 2173. Father’s Brief at 9-12. While we do not condone
Mother’s failure to comply with our Rules, the violations Father describes are
minor, do not cause him appreciable prejudice, and do not impede appellate
review. Thus, they do not warrant dismissal of this appeal. See Reliance
Ins. Co. v. IRPC, Inc., 904 A.2d 912, 915 (Pa. Super. 2006), reargument
denied (Sept. 6, 2006), appeal denied, 921 A.2d 497 (Pa. 2007) (“[W]e are
not persuaded that IRPC’s failure to file its designation of reproduced record
in a timely fashion will be inherently prejudicial to Travelers Property Casualty
Corporation and Travelers Casualty and Surety Company. Hence, the motion
to quash is denied.”) (citations omitted).

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(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)
(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.

(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.

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(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

Mother’s first and second claims are interrelated, so we address them

together. Mother argues that the trial court abused its discretion in its analysis

of the Section 5328(a) factors and by concluding that the evidence supported

awarding her only partial physical custody of the Children. Specifically, she

challenges the court’s findings that Father performs more parental duties; that

he is more stable; that he is more likely to maintain a loving, stable, consistent

and nurturing relationship with the Children; and that he is more likely to

attend to the Children’s needs. Mother’s Brief at 13-18. Mother also contends

that the court failed to consider certain factors that were favorable to her,

including her relationship with the Children, and the Children’s well-reasoned

preferences. Id. at 18-21.

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4The trial court discussed each of the Section 5328(a) factors in its opinion,
but did not address Section 5328(a)(2.1) separately from Section 5328(a)(2),
and did not identify any other relevant factor pursuant to Section 5328(a)(16).

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We discern no abuse of discretion by the trial court. As summarized

above, Father testified at length regarding Mother’s chronic instability and

irresponsible behavior, including her habit of leaving the Children unattended

or with strangers. Father expressed particular concern that Mother’s behavior

was harmful to the Children’s education, in that they were frequently late to

school during Mother’s custody time or absent for inadequate reasons. Father

also testified that Mother was uncooperative with the parties’ current custody

schedule, in that she always returned the Children to him late and sometimes

failed to return them entirely. In light of this evidence, the record supports

the court’s findings, and we must defer to the court’s credibility and weight of

the evidence determinations. See V.B., 55 A.3d at 1197.

Mother’s argument that the trial court failed to consider certain factors

favorable to her in its analysis of Section 5328(a) is also meritless. It is clear

that the court considered Mother’s relationship with the Children. See, e.g.,

TCO at 8 (“While there is no evidence that [Mother] does not maintain a loving

and nurturing relationship with the [C]hildren, there are issues regarding

stability and consistency in her relationship with the [C]hildren.”). Moreover,

neither party requested that the court interview the Children in order to better

discern their preferences.5 To the extent the record reveals the Children’s

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5 Our Rules of Civil Procedure provide that interviews of children in custody
actions are optional. See Pa.R.C.P. 1915.11(b) (“The court may interview a
child, whether or not the child is the subject of the action, in open court or in
chambers. . . .”) (emphasis added).

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preferences, it suggests that they prefer spending time with Mother because

of her lax discipline, and that their preferences are not “well-reasoned.” See

N.T., 1/30/20, at 88 (Father testifying, “I can remember times when I would

put [E.H.] in a punishment in my house. . . . And he would say, ‘Hey, can you

take me to my mother’s early on Sunday?’ Because he knew this punishment

will be over the minute he gets to her house.”).

As a final matter, we note that Mother asserts at several places in her

argument that the trial court failed to explain its findings sufficiently. Mother’s

Brief at 12, 16-18. For example, she complains that the “court concluded that

several of the factors delineated within [Section 5328(a)] weighed in favor of

Father without articulating the record evidence, if any, that weighed against

Mother.” Id. at 12. A trial court need not explain its findings pursuant Section

5328(a) in any specific amount of detail. Rather, “all that is required is that

the enumerated factors are considered and that the custody decision is based

on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.

2013), appeal denied, 68 A.3d 909 (Pa. 2013). In this case, the court made

findings regarding the Section 5328(a) factors in its opinion, and based its

decision on those findings. We conclude, therefore, that the court conducted

an adequate analysis of Section 5328(a), and that Mother’s first and second

claims fail.

Mother’s third claim is that the trial court abused its discretion by not

requiring Father to meet his burden of proof. She directs this Court’s attention

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to precedent indicating that the burden of proof rests on a party requesting

modification of an existing custody arrangement. Mother’s Brief at 21 (citing

Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super. 2006)). While Mother

acknowledges that this is the parties’ first custody proceeding, rather than a

modification proceeding regarding a prior order, she insists that the burden of

proof rested on Father nonetheless, because he was requesting modification

of the parties’ informal, written custody agreement. Id. at 22.

This claim does not entitle Mother to relief. As Mother argues, Ketterer

states that the burden of proof will rest on the party requesting modification

of an existing “custody arrangement[.]” 902 A.2d at 539 (quoting Johns v.

Cioci, 865 A.2d 931, 937 (Pa. Super. 2004)). However, this Court has made

clear in its other decisions that the language in Ketterer refers to pre-existing

custody orders, whether entered to memorialize a formal custody agreement,

or following a hearing and best interest analysis by the trial court. See, e.g.,

M.J.S. v. B.B., 172 A.3d 651, 660 (Pa. Super. 2017) (explaining that the trial

court acted improperly by placing the burden of proof on the petitioner, as

“there was neither a formal custody arrangement between [the parties], nor

a final custody order based upon the requisite best-interests analysis.”);

Collins v. Collins, 897 A.2d 466, 472 (Pa. Super. 2006), appeal denied, 903

A.2d 1232 (Pa. 2006) (“In the absence of a pre-existing custody order, both

parents stand on equal footing, sharing the burden of production and

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persuasion.”). Because there was no pre-existing order in this case, Ketterer

is inapplicable and the burden of proof rested equally on Mother and Father.6

Next, Mother contends in her fourth claim that the trial court erred by

instructing her that she could file exceptions to the February 13, 2020 order.

Mother’s claim relates to the court’s statement at the conclusion of the hearing

that it would issue an order and that she could “[c]ertainly . . . take exceptions

to it if you don't think it’s an appropriate [o]rder.” N.T., 1/30/20, at 163. She

maintains that the February 13, 2020 order was a final order, from which she

could not file exceptions. Mother’s Brief at 22-25. Mother suggests that the

court may have relied on its erroneous belief that she could file exceptions as

the basis for denying her request for a continuance. Id. at 25.

We agree with Mother that the trial court erred to the extent it instructed

her that she could file exceptions. Our Rules of Civil Procedure provide for the

filing of exceptions in child custody matters in only very limited circumstances,

not present here. See Pa.R.C.P. 1915.4-1; Pa.R.C.P. 1915.4-2 (providing for

the filing of exceptions from a hearing officer’s report in matters involving

partial custody or supervised physical custody where the county has adopted

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6 The trial court did not specify in its opinion which party bore the burden of
proof, and it is possible that the court placed the burden solely on Father.
Even if the burden did rest on Father, it is clear that he presented sufficient
evidence to establish that the court’s custody award was in the Children’s best
interests.

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that procedure by local rule).7 However, the court’s error was harmless and

does not warrant reversal of the February 13, 2020 order. Mother did not

attempt to file exceptions and instead timely filed this appeal. Thus, Mother

did not suffer prejudice as a result of the court’s mistake. See J.C. v. K.C.,

179 A.3d 1124, 1130 (Pa. Super. 2018) (quoting Harman ex rel. Harman

v. Borah, 756 A.2d 1116, 1122 (Pa. 2000)) (to avoid a finding of harmless

error, an appellant “‘must demonstrate . . . . that he or she has suffered

prejudice from the mistake’”).

In her fifth claim, Mother argues that the trial court abused its discretion

when it denied her request for a continuance. Mother complains that the court

did not afford her additional time to obtain legal counsel and “barely” afforded

her time to cross-examine Father. Mother’s Brief at 25. She contends that

the court’s decision was a violation of her right to due process. Id. at 26-28.

Mother characterizes her belated appearance at the hearing as a reasonable

mistake and insists that the court denied her a meaningful opportunity to be

heard. Id. at 27-28.

We review a trial court’s decision to deny a continuance pursuant to an

abuse of discretion standard of review. In the Interest of D.F., 165 A.3d

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7 While Mother could not file exceptions to the February 13, 2020 order, she
could file a motion for reconsideration. See Pa.R.C.P. 1930.2(b) (“A party
aggrieved by the decision of the court may file a motion for reconsideration in
accordance with Pa.R.A.P 1701(b)(3).”). Therefore, the court’s statement
that Mother could file a response to its order was not entirely inaccurate.

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960, 964-65 (Pa. Super. 2017), appeal denied, 170 A.3d 991 (Pa. 2017); see

also Pa.R.C.P. 216(A)(4) (providing that a trial court may grant a continuance

based on “[s]uch special ground as may be allowed in the discretion of the

court”). Regarding the due process aspect of Mother’s claim, this presents a

question of law for which our standard of review is de novo. In the Interest

of S.L., 202 A.3d 723, 729 (Pa. Super. 2019). “[P]rocedural due process

requires, at its core, adequate notice, opportunity to be heard, and the chance

to defend oneself before a fair and impartial tribunal having jurisdiction over

the case. Due process is flexible and calls for such procedural protections as

the situation demands.” S.T. v. R.W., 192 A.3d 1155, 1161 (Pa. Super. 2018)

(internal citations and quotation marks omitted).

We discern no abuse of discretion or error of law by the trial court in

denying Mother’s continuance request. Father filed his complaint for custody

on October 2, 2018, and Mother had over a year to obtain counsel prior to the

hearing on January 30, 2020. Tellingly, Mother was able to obtain counsel,

who filed this appeal, less than a month after the court entered the subject

order. Mother’s procrastination and failure to obtain counsel earlier was not

a legitimate reason for delaying the resolution of the parties’ custody dispute.

Moreover, Mother received the court’s order specifying the date and time of

the hearing by approximately December 5, 2019. Although Mother arrived to

the hearing late, the court provided her with the opportunity to cross-examine

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Father and placed no limit on her ability to ask questions.8 Therefore, Mother

received notice, the opportunity to be heard, and a chance to defend herself,

and the court did not violate her right to due process. Mother’s fifth and final

claim does not entitle her to relief.

Based on the foregoing analysis, we conclude that the trial court did not

commit an abuse of its discretion or error of law by awarding Father primary

physical custody of the Children. Accordingly, we affirm the court’s February

13, 2020 order.

Order affirmed.

Judge Nichols did not participate in the consideration or decision of this

case.

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8 Notably, the trial court did not provide Mother with the opportunity to present
any testimony or evidence of her own. While the court suggests in its opinion
that it did provide Mother with such an opportunity, our review of the record
belies the court’s characterization. See TCO at 2 (“When asked if there was
anything further, [Mother’s] only reply was to once again state that she
wanted to hire an attorney.”). The record reveals that the court asked Mother
if she wanted to hire an attorney, and she responded in the affirmative. N.T.,
1/30/20, at 162. At no point did the court ask Mother if she had “anything
further.” Nonetheless, Mother did not ask the court to present testimony
during the hearing, did not claim in her concise statement that the court
prevented her from presenting testimony, and does not now assert in her brief
that the court prevented her from presenting testimony. As a result, any claim
relating to the court’s omission is waived, and we do not address it here.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2020

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