J-A11023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L.Z.
No. 1983 MDA 2016
Appeal from the Order Entered November 9, 2016
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2014-2344
BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED JULY 10, 2017
B.B. (“Father”) appeals from the November 9, 2016 order entered in
the Cumberland County Court of Common Pleas setting forth the amended
Parenting Plan for M.T.B. (“Child”). We affirm.
The trial court summarized the relevant history of this matter as
follows:
This is a custody action between Plaintiff Father [B.B.]
and Defendant Mother [L.Z.] that concerns their only
daughter, a child who is now eight (8) years old. The
action began in December 2009 when Father filed a
custody complaint in York County and the matter was
generally handled in that county until transferred in April
2014 to Cumberland County. The issue on appeal began in
March 2016 by way of a custody modification that resulted
in a Parenting Plan and Assessment being filed on August
2, 2016.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Father filed a Petition for Emergency Relief in the latter
part of August 2016 that was denied on August 29, 2016,
as the Parenting Plan specifically provided options to
address the circumstances denominated in the Petition as
an emergency. On September 9, 2016, the court sua
sponte reconsidered the Parenting Plan upon receipt of the
chemical tests results that permitted review of the
Parenting Plan by its terms. A further trial was scheduled
to include the medical testimony on Mother’s chronic
health issues that were not provided during the course of
the initial trial and information on school relocation. A trial
was scheduled for November with a late October pretrial
conference. Mother filed a Motion for Reconsideration of
the September 9, 2016 Modification of the Parenting Plan
based on the chemical tests results, which the court denied
on September 20, 2016. Mother filed an appeal to the
Superior Court that was discontinued on October 20, 2016.
The trial based on manifest necessity for the lack of
coverage of the prescribed factors was held and an
amended Parenting Plan entered on November 9, 2016.
Father has now appealed that decision and filed a twelve
(12) page concise statement of matters complained on
appeal, which this opinion will attempt to succinctly
address.
1925(a) Opinion, 1/9/17, at 1-2 (“1925(a) Op.”).
Father raises the following 21 issues1 on appeal:
____________________________________________
1
We note that Father’s brief does not comply with the dictates of
Pennsylvania Rule of Appellate Procedure 2116(a), which requires that the
statement of question involved “state concisely the issues to be resolved,
expressed in the terms and circumstances of the case but without
unnecessary detail.” Indeed,
[t]he approach to appellate advocacy embarked on by
present counsel for [Father] brings to mind the words of
the Honorable Ruggero J. Aldisert of the United States
Court of Appeals for the Third Circuit:
With a decade and a half of federal appellate
court experience behind me, I can say that
(Footnote Continued Next Page)
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AUGUST 2, 2016 ORDER
(A) Did the lower court err in limiting the amount of time
that each side had to present their fact witnesses
(including the parties) to seventy-five (75) minutes,
thereby depriving Father the right to cross examine
Mother’s fact witnesses on whom the Judge relied in
fashioning the award of custody?
(B) Did the lower court err in reaching a decision contrary
to the weight of evidence, including the lower court’s own
“factual findings” as listed in its August 2, 2016 Order?
(C) Did the trial court fail to properly analyze all of the
custody and relocation factors (if applicable), instead,
offering “findings of fact” under each factor but no
discussion or insight into how or why the court issued the
Order it did?
(D) Did the trial court err in considering the relocation
factors when Father was not moving a “significantly distant
location” from Mother, nor would such move inhibit either
party’s custodial rights?
_______________________
(Footnote Continued)
even when we reverse a trial court it is rare
that a brief successfully demonstrates that the
trial court committed more than one or two
reversible errors. I have said in open court that
when I read an appellant’s brief that contains
ten or twelve points, a presumption arises that
there is no merit to any of them . . . [and] it is
[this] presumption . . . that reduces the
effectiveness of appellate advocacy.
Aldisert, “The Appellate Bar: Professional Competence and
Professional Responsibility–A View From the Jaundiced Eye
of the Appellate Judge,” 11 Cap. U.L. Rev. 445, 458 (1982)
(emphasis in original).
Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (some
alterations in original). Although the Rules of Appellate Procedure allow this
Court to quash or dismiss an appeal if the defects in the brief are
substantial, see Pa.R.A.P. 2101, we will decline to find waiver on this basis
given the sensitive nature of this child custody matter.
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(E) Did the lower court err in reaching a decision exactly
opposite of the recommendations of Kasey Shienvold,
Psy.D., despite the custody evaluator’s uncontroverted
testimony and recommendations regarding this child with
ADHD who needed more structure and stability which
Father could provide, without giving any rationale or
reasoning for [its] decision?
(F) Did the lower court err by failing to consider the
domestic violence between Mother and her boyfriend as
testified to by Father and the custody evaluator and as
reported to Father and the custody evaluator by the Child?
(G) Did the lower court err by failing to consider Father’s
testimony concerning Mother’s abuse of prescription drugs,
as well as the Report and testimony of the custody
evaluator that the child had reported to him that Mother
and her boyfriend had physical altercations about “pills and
money”?
AUGUST 29, 2016 ORDER
(H) Did the lower court err in failing to consider the
concerns about drugs within Mother’s household as
subsequently proven by the arrest of Colin Foltz (Mother’s
boyfriend) for possession of “2 hypodermic needles, metal
spoon, small rubber bands, empty box of suboxone” (R.
536a) on July 15, 2016, a mere 9 days after the conclusion
of the July 6th trial date (at which trial Mother and her
boyfriend had both testified that there were no issues with
“money and pills”) (R.335a) and before the lower court
entered its August 2, 2016 Order even though the matter
was once again brought to the court’s attention?
(I) Did the lower court err by waiting until August 29,
20162 to enter an Order and in so doing, failing to consider
the child's best interests and safety when it finally issued
the Order to address the Emergency Petition filed by
Father on Wednesday, August 24, 2016 at 12:19 p.m.
which was filed by Father immediately after discovering
(merely by happenstance and not by Mother advising him
of this information) Mother’s boyfriend’s arrest?
2
Five (5) days after the Emergency Petition
was filed which consisted of three (3) business
days.
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(J) Did the lower court err in failing to consider the child’s
best interests and safety when it failed to hold a hearing to
address Father’s August 24, 2016 Emergency Petition and
summarily denied all of Father’s requested relief therein?
(K) Did the lower court err in failing to hold a hearing after
the filing of Father’s August 24, 2016 Emergency Petition
when the veracity of the testimony provided by Mother and
her boyfriend at the July 6, 2016 Hearing was clearly now
questionable, at best, and the lower court was in the best
position to make the credibility determination?
NOVEMBER 9, 2016 ORDER
(L) Did the lower court err in limiting the time that each
side had to present their case to seventy (70) minutes for
each side such that Father did not have the opportunity to
call any of his fact witnesses, nor to recall Father to
address issues raised by Mother, nor to call rebuttal
witnesses to address allegations made by Mother?
(M) Did the lower court err in reaching a decision contrary
to the evidence and testimony presented, specifically
including the testimony and November 5, 2016
letter/report of Father’s expert, Ted D. Kosenske, M.D.?
(N) Did the lower court err in reaching a decision contrary
to the evidence and testimony presented, specifically
including the testimony of Mother’s expert, Jeffrey P.
Sarsfield, M.D.?
(O) Did the trial court fail [to] properly analyze all of the
custody and relocation factors (if applicable), instead,
offering what appear to be “findings of fact” under each
factor but no discussion or insight into how or why the
court issued the Order it did, and did the court fail to
update its “analysis” in certain factors that should have
been updated from the August 2, 2016 Hearing?
(P) Did the trial court err in considering the relocation
factors when Father was not moving a “significantly distant
location” from Mother, in fact, Father had already moved,
nor would such move inhibit either party’s custodial rights
and therefore, the question was merely a question of legal
custody - should child change schools?
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(Q) Did the lower court err in failing to consider the
experts’ opinions and factual testimony regarding Mother’s
overuse of her prescription medication and the potential
adverse safety ramifications when fashioning an Order
which does not address the child’s best interests in this
situation or address safeguards for the child when she is in
the care and custody of Mother when the safety of the
child is to be a factor that is to be weighted in
consideration?
(R) Did the lower court err in failing to consider the reports
and opinions of the child’s teacher, guidance counselor and
principal, all of whom testified to a marked positive
difference in the child since she had been in Father’s sole
custody (with only periods of supervised custody to
Mother)?
(S) Did the lower court err by “punishing” Father for
abiding by and following the Court’s Order of Supervised
Custody and by trying to protect child from Mother’s
overuse of prescription medication and ensuring that the
child was properly supervised during Mother’s periods of
custody and during calls with Mother so that Mother could
not continue to tell child it was all Father’s fault that child
could not see Mother?
(T) Did the lower court err by failing to consider the
domestic violence between Mother and her boyfriend as
testified to by Father and the custody evaluator and as
reported to Father and the custody evaluator by the Child
despite the fact that this is to be a weighted factor?
(U) Did the lower court err by failing to consider the
testimony of Father, Dr. Sarsfield, Dr. Kosenske, and Dr.
Shienvold (as reported by the child) concerning Mother’s
use/abuse of prescription drugs when same is not only a
factor under the custody statute, but also one which is to
be weighted in consideration?
Father’s Br. at 44-51 (suggested answers omitted).
As a preliminary matter, we conclude that Father’s issues arising from
the trial court’s August 2, 2016 and August 29, 2016 orders, with the
exception of Father’s challenge to the time limitation for presentation of
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witnesses imposed by the trial court, are moot. The November 9, 2016
order rendered the August 2, 2016 order inoperative because the parenting
plan in the November 9 order superseded the parenting plan in the August 2
order. The August 29, 2016 order denied Father’s petition for emergency
relief. On September 9, 2016, however, the trial court, sua sponte, treated
the petition as a motion for reconsideration of the August 2, 2016 order and
granted Father relief.2
____________________________________________
2
Father’s petition for emergency relief requested:
1) that the parties shall continue to share legal custody of
[Child]; 2) Father be granted primary physical custody of
[Child] pending further Order of Court; 3) that Mother be
granted periods of supervised custody; 4) that Mother and
[Mother’s boyfriend] undergo a full-panel hair follicle drug
screen within forty-eight (48) hours of the issuance of this
Order to be paid at Mother’s expense and that the results
of said drug screen be released directly to the
undersigned; 5) that [Child] have NO CONTACT with
Mother’s boyfriend, . . . 6) at no time shall Mother’s
periods of supervised custody occur at the home of
Mother’s boyfriend; 7) that Mother be ordered to undergo
and cooperate in co-parenting counseling with Heather Jay
-Boardman or with Dennis Graybill and that all costs of
said co-parenting counseling not covered by insurance be
borne equally by the parties; 8) that Mother be ordered to
cooperate in putting [Child] in counseling with Shanen
Turk-Gellar at New Passages and that any costs of
[Child]’s counseling not covered by insurance be borne
equally by the parties; 9) that a Hearing be scheduled to
address a permanent change of the custodial schedule
based upon [Child]’s best interests in light of this new
information; and 10) that Father be awarded attorneys’
fees, costs and expenses for Mother’s obdurate and
vexatious behavior and failure to act in good faith and
(Footnote Continued Next Page)
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In Father’s numerous issues, he challenges the trial court’s rulings and
findings on four separate bases: 1) the trial court erred in limiting the
parties’ time to present witness; 2) the trial court erred in considering the
relocation factors, when those factors were irrelevant; 3) the trial court
erred in its analysis of the custody and relocation factors; and 4) the trial
court erred in failing to consider and credit the evidence presented by
Father.
“Our concern in any custody or relocation matter is the best interest of
the child, which considers all factors, on a case-by-case basis, that
legitimately affect a child’s physical, intellectual, moral, and spiritual well-
being.” S.J.S. v. M.J.S., 76 A.3d 541, 554 (Pa.Super. 2013). 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
_______________________
(Footnote Continued)
consistent with the best interests of the parties’ minor
child.
Pet. for Emer. Rel., 8/24/16, at 8-9 (unpaginated). The September 9, 2016
order modified the August 2, 2016 parenting plan as follows: 1) Child was
to live with Father full-time, with Mother having supervised custody; 2) Child
was to remain at her school with Father responsible for school
transportation; 3) the rest of the August 2, 2016 parenting plan remained in
effect. The order scheduled a hearing to address what the trial court termed
“deficit[s] in the testimony of Mother’s current health status.” Order,
9/9/16, at 2. The trial court scheduled the hearing for November 9, 2016.
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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. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (quoting A.D. v.
M.A.B., 989 A.2d 32, 35-36 (Pa.Super. 2010)) (internal citations omitted).
This Court has also stated 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.” Ketterer v. Seifert, 902 A.2d 533, 540
(Pa.Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254
(Pa.Super. 2004)). “[T]he 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.” Id. (quoting Jackson, 858 A.2d at
1254).
“An abuse of discretion is not merely an error of judgment.”
Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super. 2007) (quoting
Arbet v. Arbet, 863 A.2d 34, 39 (Pa.Super. 2004)). A trial court abuses its
discretion when it “overrides or misapplies the law, or exercises judgment
which is manifestly unreasonable, or the result of partiality, prejudice, bias
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or ill will.” ABG Promotions v. Parkway Publ’g, Inc., 834 A.2d 613, 616
(Pa.Super. 2013) (en banc).
Section 5328(a) of the Child Custody Act delineates the factors that a
trial court must consider when awarding any form of custody.3 Section
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3
The factors to be considered when determining an award of custody
are:
(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
(Footnote Continued Next Page)
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5337(h) delineates 10 factors that a trial court must consider in determining
whether to grant a proposed relocation.4
_______________________
(Footnote Continued)
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
The factors to be considered in determining whether to grant a
proposed relocation are as follows:
(1) The nature, quality, extent of involvement and duration
of the child’s relationship with the party proposing to
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
relocate and with the nonrelocating party, siblings and
other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and
the likely impact the relocation will have on the child’s
physical, educational and emotional development, taking
into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between
the nonrelocating party and the child through suitable
custody arrangements, considering the logistics and
financial circumstances of the parties.
(4) The child’s preference, taking into consideration the
age and maturity of the child.
(5) Whether there is an established pattern of conduct of
either party to promote or thwart the relationship of the
child and the other party.
(6) Whether the relocation will enhance the general quality
of life for the party seeking the relocation, including, but
not limited to, financial or emotional benefit or educational
opportunity.
(7) Whether the relocation will enhance the general quality
of life for the child, including, but not limited to, financial
or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking
or opposing the relocation.
(9) The present and past abuse committed by a party or
member of the party’s household and whether there is a
continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the
child.
23 Pa.C.S. § 5337(h).
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The trial court explained that it had exercised its broad discretion to
limit the parties’ time to present testimony. 1925(a) Op. at 7. It also
concluded that it was required to evaluate the relocation factors, because
Father’s request for primary custody would include a new school district and
school for Child. Id. at 5. The trial court reviewed the evidence and
testimony presented and considered all of the custody and relocation factors,
see Order, 11/9/16, at 9-16, and found that the custody schedule in the
November 9, 2016 order was in Child’s best interests. Id. at 17.
At the conclusion of its opinion, the trial court explained:
Mother and Father have considerable room to grow as
parents. Neither would be considered a model parent, nor
is the custody action a test of who is the better parent.
Indeed, this case exemplifies the problems with this
system of custody determination. The parties come into
court, lob verbal grenades at one another and the family,
and then the law expects a court to put the family back
together again. The court does not err in focusing in on
the positives within the child’s life and promoting those
positives. In this case, one of the positives is the child’s
school; one that she has been a part of for years, the one
that provides her with stability, continuity and
development. Father was awarded a shared percentage of
custody as per his modification request; with the ability to
modify the cycle of custody as the child needs, which could
include his specifically requested 3/2/2/3 cycle, if Father
and Mother can grow. Father’s complaint that [he] is not
named primary custodian falls on deaf ears, as he has not
shown he is ready or capable for that responsibility, nor
that a change in schools is in the best interests of their
child.
1925(a) Op. at 7-8 (footnote omitted). After reviewing the parties’ briefs,
the certified record, and the relevant law, we conclude the trial court did not
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abuse its discretion. We agree with and adopt the well-reasoned opinion of
the Honorable Thomas A. Placey. See id. at 3-8.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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