Opinion
J-A04045-16 No. 1505 WDA 2015
05-02-2016
E.R., Appellee v. D.D., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 6, 2015
In the Court of Common Pleas of Elk County
Civil Division at No(s): 2007-673 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J. MEMORANDUM BY SHOGAN, J.:
Appellant, D.D. ("Mother"), appeals pro se from the order of the Court of Common Pleas of Elk County in this child custody matter, in which E.R. ("Father") received additional physical custody of the parties' daughter, P.E.R. ("Child"). We affirm.
We summarize the history of this case as follows. Mother and Father were married on October of 2005 and separated in May of 2007, when Mother was several months pregnant with Child. Child was born in January of 2008. Father then filed for visitation. Mother agreed to the visitation and the parties eventually divorced. Father has since remarried. Mother resides in Emporium, Pennsylvania, and Father lives in St. Marys, Pennsylvania.
In March of 2011, the trial court entered a custody order directing that Mother would have physical custody of Child (then three years old) from 10:00 a.m. on Monday until 12:00 p.m. on Thursday, and Father would have physical custody of Child from 12:00 p.m. on Thursday until 10:00 a.m. on Monday. On November 30, 2012, Father filed a petition to modify custody. On March 12, 2013, the parties stipulated to the entry of a court order setting out in detail the periods of custody each parent would receive. Although the basic weekly time frame for custody was not altered by the trial court's order, it did set forth greater detail regarding custody for vacations and holidays, and provisions for travel and transportation. Paragraph six of the court order provided as follows: "6. The parties agree that [Child] shall attend the St. Marys Area School District commencing in kindergarten and Mother will relocate to St. Marys Area School District." Custody Order, 3/12/13, at 9.
Both parties were represented by counsel at the time the stipulation was accepted by the trial court and reduced to an order.
On October 14, 2014, Mother filed a pro se petition to modify custody in which she sought primary physical custody of Child and permission to relocate Child to an Emporium school in Cameron County. In her petition, Mother alleged that she did not have the financial capacity to move to St. Marys. Petition to Modify Custody, 10/14/14, at 2. In addition, in paragraph four of her pro se petition, Mother stated the following: "4. [Mother] has been driving [Child] to and fro[m] school daily and is under financial strain to continue to afford to drive this far daily[.]" Id.
The parties participated in court-ordered custody evaluations. The matter eventually proceeded to a custody hearing before the Honorable Richard A. Masson, President Judge of Elk County, on June 23, 2015. On August 6, 2015, the trial court entered an order modifying physical custody in favor of Father and keeping Child in her current school district. On August 11, 2015, the trial court authored a detailed opinion setting forth its general findings of fact and its statutory-factor findings. Mother filed this pro se appeal on September 2, 2015. The trial court did not direct Mother to file a Pa.R.A.P. 1925(b) statement. The trial court filed a Pa.R.A.P. 1925(a) opinion on September 25, 2015.
Prior to discussing the substantive issues raised by Mother on appeal, we first consider Father's contention that Mother's appeal should be quashed or dismissed because of Mother's failure to comply with provisions of the Pennsylvania Rules of Appellate Procedure relating to the filing of the notice of appeal in family fast track cases. Father's Brief at 4-5. We have reviewed the record before us and observe that Mother has failed to fully comply with the Pennsylvania Rules of Appellate Procedure, as alleged. Although this Court may dismiss or quash an appeal based upon an appellant's failure to follow the Pennsylvania Rules of Appellate Procedure, because her violations have not hampered the presentation of the appeal to this Court, and we are able to discern the issues raised by Mother on appeal, we decline to dismiss or quash in this instance. In re J.F., 27 A.3d 1017, 1019-1020 (Pa. Super. 2011). See also Wilkins v. Marsico , 903 A.2d 1281, 1285 (Pa. Super. 2006) (deciding issues raised on appeal by pro se appellant because, "[d]espite the numerous defects in his brief, we are able to identify [a]ppellant's issues"). Thus, we will proceed with our review.
Specifically, it has been alleged that Mother's appeal failed to comply with Pa.R.A.P. 904(a) (relating to the proper form of the notice of appeal) and (f) (explaining the notice of appeal should advise the appellate court that the appeal is a children's fast track), and Pa.R.A.P. 906(a) (relating to service of notice of appeal).
In her pro se brief, Mother presents the following issues for our review, which we reproduce verbatim:
1. Whether or not the trial committed an error in law and or abused its discretion by taking the appellants custody time away when even the father wanted to keep the previous order the same?Mother's Brief at 4.
2. Whether or not the trial committed an error in law or abused its discretion by making finding of facts that was contrary to the sufficient evidence or testimony presented?
3. Whether or not the trial committed an error in law or abused its discretion by ignoring the findings and report by Daniel Keysor, the clinical custody evaluator and not having him present in court but allowing the plaintiff to argue the report and aluding to a prior relationship between the appellant and the evaluator?
4. Whether or not the trial committed an error in law or abused its discretion by not giving the proper weight to all thje factors that are in the best interest of the child?
5. Whether or not the trial made an error in law or abused its discretion by giving more time to the father or appellee after he admitted in court to using alcohol with methadone and Percocet, and the evaluator finding an addiction?
Initially, we observe that Mother's pro se brief fails to conform to multiple rules of appellate procedure pertaining to the construction of appellate briefs. In particular, Pennsylvania Rule of Appellate Procedure 2119 addresses the argument section of appellate briefs and provides, in part, as follows:
Rule 2119. ArgumentPa.R.A.P. 2119(a).
(a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have...such discussion and citation of authorities as are deemed pertinent.
"The Rules of Appellate Procedure state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority." Estate of Haiko v. McGinley , 799 A.2d 155, 161 (Pa. Super. 2002). "Appellate arguments which fail to adhere to these rules may be considered waived, and arguments 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). This Court will not act as counsel and will not develop arguments on behalf of an appellant. Irwin Union National Bank and Trust Company v. Famous and Famous and ATL Ventures , 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v. Hardy , 918 A.2d 766 (Pa. Super. 2007)).
Although Mother lists a total of five issues in her statement of the questions presented, we observe that the argument portion of Mother's brief is not divided into as many parts as there are questions to be argued because the argument portion is not divided into any distinctive segments. Mother's Brief at 9-13. Even more disconcerting is the fact that the argument portion of Mother's brief does not contain meaningful discussion of relevant legal authority. Id. at 10-13. Rather, the argument section of Mother's brief consists of general statements as she sees the facts of this case and lacks any legal discussion or analysis. This lack of analysis hinders meaningful appellate review. Accordingly, because Mother's arguments on her issues fail to set forth any meaningful discussion of relevant legal authority, we could conclude that her issues are waived. However, we decline to do so in this instance and we will proceed with a guarded analysis of Mother's overarching claim of trial court error.
Issues one, two, four, and five presented by Mother essentially address the concerns that the trial court failed to properly weigh the evidence and apply the statutory factors in making its custody determination. Because she has presented these issues in a single argument section of her brief, we likewise address her claims regarding these issues in a single discussion.
At the outset, we observe that, as the custody hearing in this matter was held on June 23, 2015, the Child Custody Act ("the Act"), 23 Pa.C.S. §§ 5321 to 5340, is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply).
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 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., 45 A.3d at 443 (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). Moreover, 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.Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern is the best interests of the child. 23 Pa.C.S. §§ 5328, 5338. Section 5338 provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. 23 Pa.C.S. § 5338.
Section 5323 of the Act provides for the following types of custody awards:
(a) Types of award.—After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), the court may award any of the following types of custody if it is in the best interest of the child:
23 Pa.C.S. § 5323(a).(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
Section 5328(a) sets forth the best-interest factors that the trial court must consider. E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super. 2011). Specifically, section 5328(a) of the Act provides as follows:
§ 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.23 Pa.C.S. § 5328(a).
(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.
(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.
Effective January 1, 2014, the statute was amended to include an additional factor at 23 Pa.C.S. § 5328(a)(2.1), providing for consideration of child abuse and involvement with child protective services. Although applicable at the time of the custody hearings in this matter, there was no evidence that would have required the trial court's consideration of this factor.
Mother argues that the trial court erred in failing to properly consider various facts in reaching its custody decision and in weighing the evidence presented. Mother's Brief at 10-13. In a rambling fashion Mother contends that the trial court failed to consider testimony about how well she cares for Child, how she takes Child to church, the bond that Mother has with Child, Father's admission to taking prescription drugs and drinking alcohol, and Father's alleged lying to make himself appear as a better parent. Id.
We have reviewed the briefs of the parties, the certified record, the relevant law, and the opinion filed by the trial court on August 11, 2015. It is our conclusion that the trial court thoroughly considered the facts as provided at the custody hearing and fully considered the statutory factors required pursuant to 23 Pa.C.S. § 5328(a). Trial Court Opinion, 8/11/15. Thus, the trial court adequately considered the favorable relationship and bond that exists between Mother and Child and the negative aspects pertinent to Father as alleged by Mother. Likewise, our review reflects that the trial court contemplated the favorable aspects of Father's relationship and contact with Child, and the negative aspects pertinent to Mother. As the trial court effectively concluded, "Despite the want of substantial cogent and compelling evidence, both parents are undoubtedly positive parental forces in [Child's] life and are expected to continue to promote her best interest in the future by continuing to maintaining [sic] constant contact with her." Id. at 13. Hence, we discern no abuse of discretion on the part of the trial court in reaching its decision to have Child remain at her school in St. Marys School District and in altering the custody arrangement by granting Father custody during the school week. Therefore, we adopt the trial court's thorough analysis of the statutory custody factors as presented in its opinion of August 11, 2015, and we conclude that Mother's contrary claims lack merit.
We note that it appears that the trial court inadvertently failed to list the fourth factor in its opinion dated August 11, 2015. Said factor asks the trial court to consider "[t]he need for stability and continuity in the child's education, family life and community life." Although the trial court did not enumerate factor four in its opinion, it did address the substance of the factor in its decision. Trial Court Opinion, 8/11/15, at 11-12. Hence, we are satisfied that the trial court adequately considered factor four in making its custody determination.
The parties are directed to attach a redacted copy of the August 11, 2015 opinion in the event of further proceedings in this matter.
In issue number three, Mother argues that the trial court erred in failing to have Daniel Kysor, the licensed psychologist who prepared a report for the trial court, present at the custody hearing. Mother's Brief at 10. Essentially, Mother asserts that because Mr. Kysor was not present at the custody hearing, the trial court may have failed to properly consider his recommendations.
It is accepted that under Pa.R.C.P. 234.1, a party may subpoena another person to attend a hearing. Furthermore, it is axiomatic that a party must make a timely and specific objection to a procedure in order to preserve the issue for appellate review; otherwise, the party's failure to object results in waiver of the claim. M.O. v. J.T.R., 85 A.3d 1058, 1061 (Pa. Super. 2014) (citing Fillmore v. Hill , 665 A.2d 514 (Pa. Super. 1995); Smith v. Smith , 637 A.2d 622 (Pa. Super. 1993)).
Here, our review of the record reflects that neither party sought to subpoena Mr. Kysor to ensure his presence at the custody hearing. In addition, our review reveals that the trial court accepted Mr. Kysor's report into evidence without objection from either party. Specifically, the trial court stated the following when it admitted Mr. Kysor's report into evidence:
THE COURT: It will be admitted as Court Exhibit 1. There was no objection lodged by either party to the admissibility of Mr. Kysor's summary or the results of his evaluation. So, that will be marked as Court Exhibit 1 and admitted.N.T., 6/23/15, at 9. If Mother wanted to challenge the admission of the report and lack of Mr. Kysor's presence at the hearing, she should have done so at the custody hearing. Thus, Mother's failure to object to the admission of the report, even though Mr. Kysor was not present at the hearing, results in waiver of any challenge to its admissibility and its consideration by the trial court.
Although not raised in her list of issues in the statement of questions presented portion of her appellate brief, Mother also argues that the trial judge should have recused himself from this case. Mother's Brief at 11. Mother alleges that she previously appeared before the same trial judge in criminal matters in 2007-2008 and contends that the judge was not impartial in this custody matter. Id.
Regarding challenges to the trial court's authority and suggestions that recusal was appropriate, we have stated the following:
It is the duty of the party asserting disqualification to file the petition in a timely fashion. Rizzo v. Haines , 555 A.2d 58, 70 (Pa. 1989). A recusal motion that is not timely filed will be denied. Id. "It is well-settled that a party seeking recusal or disqualification must raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred." Commonwealth v. Stafford , 749 A.2d 489, 501 (Pa. Super. 2000) (quotation marks and citations omitted) (emphasis added). In addition, it is an appellant's obligation to demonstrate which appellate issues were preserved for review. Pa.R.A.P. 2117(c), 2119(e).Coulter v. Ramsden , 94 A.3d 1080, 1089 (Pa. Super. 2013).
Our review of the certified record reflects that Mother failed to seek disqualification of President Judge Masson at any time prior to this appeal. Likewise, Mother has failed to demonstrate where she has preserved this issue for appellate review. Accordingly, we are constrained to conclude that this issue is waived.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/2/2016
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