Opinion
J-S62032-16 No. 2254 MDA 2015
09-09-2016
J.D. Appellant v. J.J. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 10, 2015
In the Court of Common Pleas of Berks County
Civil Division at No(s): 15-2945 BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, J.D. ("Mother"), appeals from the order entered in the Berks County Court of Common Pleas, which awarded the parties shared legal custody of their minor child, N.J. ("Child"), and awarded primary physical custody of Child to Appellee, J.J. ("Father"), subject to Mother's periods of partial physical custody. We affirm.
We have made every effort to decide this Children's Fast Track case expeditiously. See In re T.S.M., 620 Pa. 602, 618 n.21, 71 A.3d 251, 261 n.21 (2013) (explaining Superior Court must ensure that Children's Fast Track cases do not linger and must give such cases priority in circulation of and voting on proposed decisions). The following delays, however, occurred in this case. Mother's counsel failed to timely file a brief, so this Court issued a per curiam order on March 10, 2016, directing counsel to file a brief and reproduced record within 14 days. Instead, counsel filed an application for extension of time on March 22, 2016, claiming Mother had not yet paid the remaining balance for the transcript of the custody trial, and counsel could not file a brief as a result. On March 29, 2016, this Court ordered counsel to file within 14 days proof of payment for the outstanding transcript and a certification that counsel notified her client of this Court's order. This Court stated that Mother's compliance would result in a new briefing schedule with no further extensions allowed. Counsel complied with the order, Mother paid the outstanding balance, and the Prothonotary issued a new briefing schedule. Counsel electronically filed Mother's reproduced record on May 5, 2016 (the deadline under the new briefing schedule), but she failed to file the requisite paper copies. Additionally, counsel did not file an appellate brief. Consequently, on May 27, 2016, this Court ordered counsel to file paper copies of the reproduced record within seven days; and remanded the matter to the trial court for 30 days to determine whether counsel had abandoned Mother by failing to file a brief. Counsel filed paper copies of the reproduced record on June 3, 2016, and an appellate brief on June 7, 2016. The Prothonotary's office closed out the remand based on counsel's eventual submission of the relevant documents.
In its December 10, 2015 Decision & Final Custody Order, the trial court accurately set forth the relevant facts and procedural history of this case. Therefore, we will only briefly summarize the facts and procedural history most relevant to this appeal. Mother and Father never married but had a romantic relationship lasting approximately ten years before they separated. Prior to separation, the parties lived together in New York City. Child was born in December 2009. When Child was 1½ years old, the parties separated; and Mother moved to Reading, Pennsylvania. After Mother moved, the parties had an informal custody arrangement in which Mother exercised primary physical custody of Child. Father exercised partial physical custody throughout the year, and enjoyed custody of Child for the majority of the summer months. Once Child reached school age, the parties' ability to co-parent began to deteriorate.
On March 12, 2015, Mother filed a custody complaint at docket No. 15-2945. Father also filed a custody complaint at a different docket number. The trial court ultimately dismissed Father's complaint, and docket No. 15-2945 was used going forward. The parties attended a custody conciliation conference before a custody master on May 15, 2015. On May 21, 2015, the custody master issued a recommendation for the parties to share legal custody and for Father to have primary physical custody of Child, subject to Mother's periods of partial physical custody. The custody master drafted a proposed order outlining each parent's custodial time. Mother filed exceptions but at the incorrect docket number. Consequently, the court entered the master's proposed custody order as a final order on June 17, 2015, granting Father primary physical custody of Child. On July 1, 2015, the court vacated its June 17, 2015 order, after learning Mother had intended to file exceptions in this case. Mother filed her exceptions at the correct docket number on July 10, 2015.
On November 20, 2015, the court held a de novo custody trial. At the conclusion of trial, the court acknowledged the upcoming Thanksgiving holiday and stated its intent to make a custody decision the following week. On November 23, 2015 (before the Thanksgiving holiday), the court entered an order affirming the master's recommendation to award the parties shared legal custody and to give Father primary physical custody of Child, subject to Mother's periods of partial physical custody. The court attached a copy of the master's proposed custody order, effective as of that date. The court also attached as an appendix a "Code of Conduct" for parties involved in custody disputes. On December 10, 2015, the court issued a Decision & Final Custody Order reiterating its custody decision and supplying detailed findings of fact and conclusions of law analyzing each of the statutory custody factors. The custody order delineating the parties' periods of custody contained three appendices: (1) the "Code of Conduct" previously attached to the November 23, 2015 custody order; (2) a copy of certain provisions governing relocation pursuant to 23 Pa.C.S.A.§ 5337; and (3) an explanation of shared legal custody. Mother timely filed a notice of appeal on December 22, 2015, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
The December 10, 2015 custody order is almost identical to the master's proposed custody order, which the court had attached to its previous November 23, 2015 order.
Mother raises the following issues for our review:
WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF LAW IN ITS NOVEMBER 23, 2015 ORDER BY ORDERING THAT "THE CUSTODY ORDER RESULTING FROM THE CONFERENCE WITH [THE] CUSTODY MASTER...IS AFFIRMED AND SHALL BE FOLLOWED EFFECTIVE AS OF THE DATE OF THIS ORDER, A COPY OF WHICH IS ATTACHED"?
WHETHER THE [TRIAL] COURT ERRED AND COMMITTED A GROSS ABUSE OF DISCRETION BY ENTERING TWO ORDERS BECAUSE THE ORDERS HAD DIFFERENT
APPENDICES, AND THE EXISTING TWO ORDERS COULD CREATE CONFUSION?(Mother's Brief at 7).
WHETHER THE [TRIAL] COURT ERRED AND COMMITTED A GROSS ABUSE OF DISCRETION BY ENTERING BOTH ORDERS WITH HOLIDAY SCHEDULES OF CUSTODY THAT SIMPLY ARE NOT PRACTICAL OR IN THE CHILD'S BEST INTEREST BECAUSE THE PARTIES LIVE IN DIFFERENT STATES AND HAVE APPROXIMATELY THREE HOURS OF TRAVEL TO PICK UP THE CHILD?
WHETHER THE [TRIAL] COURT ERRED IN APPLYING THE STATUTORY FACTORS OF CUSTODY.
In reviewing a child custody order:
[O]ur scope is of the broadest type and our standard is abuse of discretion. This Court 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, this Court must defer to the trial judge who presided over the proceedings and thus viewed 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.S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation omitted).
For purposes of disposition, we address Mother's issues one through three together. In her first issue, Mother argues the trial court merely "rubber stamped" the custody master's recommendation, by entering an order on November 23, 2015, affirming the master's recommendation for Father to have primary physical custody of Child, and attaching the master's proposed custody order. Mother asserts that Pennsylvania Rule of Civil Procedure 1915.4-3(a) permits a "hearing officer" (not a custody master) to preside over a non-record proceeding such as a conciliation conference or office conference, and to prepare a written order when the parties agree to a custody resolution. If no agreement is reached, Mother contends the "hearing officer" must notify the court that the matter should be listed for trial. Because the parties did not agree on a custody decision, Mother claims the master lacked authority to issue a recommendation, and the court similarly erred by "affirming" the master's proposed custody order.
In her second issue, Mother avers the trial court erred when it issued its final custody decision on December 10, 2015, because the court attached different appendices to this order than the one attached to the prior November 23, 2015 order. Mother insists the issuance of two orders in a custody case is not authorized by the rules, creates confusion, and erodes confidence in the judicial system.
In her third issue, Mother argues the trial court implemented an impractical holiday schedule. Mother emphasizes that the parties live approximately three hours apart, with Father residing in New York and Mother residing in Reading, Pennsylvania. Mother points out that the custody order gives her custodial time on Mother's Day from 10:00 a.m. to 7:00 p.m., and permits Father the same timeframe on Father's Day. Mother complains this schedule requires Child to travel six hours on each date, leaving at 7:00 a.m. and returning at 10:00 p.m. Mother suggests the trial court should have awarded Mother custodial time for Mother's Day weekend and Father custodial time for Father's Day weekend.
Mother submits the court should have addressed other holidays in a similar fashion. For example, Mother takes issue with the court's Christmas schedule awarding one parent custody from noon on December 24th until noon on December 25th and again from noon on December 29th until noon on the day before school commences; the other parent shall have custody from noon on December 25th until noon on December 29th. Mother complains this custody arrangement requires Child to travel three hours each day on December 24th and December 25th and requires each parent to travel six hours on one of those days. Mother claims the court's holiday schedule is not in Child's best interests, particularly due to the volume of traffic during the holidays. Mother also claims the court failed to take into consideration Child's best interests when formulating a weekly alternating custody schedule in the summer because Child could have activities during the summer. Mother maintains the court ignored the fact that Father previously enjoyed custody of Child for all of the summer when Mother had primary physical custody of Child. Mother suggests she should have custody of Child for 75% of the summer. Mother concludes the court's collective errors constitute an abuse of discretion, and this Court must remand for further proceedings or adjust the parties' custodial periods during holidays and in the summer. We disagree.
Preliminarily, we observe generally that issues not raised in a Rule 1925 concise statement of errors will be deemed waived. Lineberger v. Wyeth , 894 A.2d 141 (Pa.Super. 2006). The Rule 1925 statement must be specific enough for the trial court to identify and address the issue(s) an appellant wishes to raise on appeal. Id. "[A] [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all." Id. at 148. If a concise statement is too vague, the court may find waiver and disregard any argument. Id. See also In re L.M., 923 A.2d 505 (Pa.Super. 2007) (applying Rule 1925 waiver standards in family law context).
As well, appellate briefs must conform in all material respects to the briefing requirements in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2119 (stating argument shall be divided into as many parts as there are questions to be argued; and shall have at head of each part particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent). Where an appellant fails to raise or develop her issues on appeal properly, or where her brief is wholly inadequate to present specific issues for review, this Court will not consider the merits of the claims raised. Butler v. Illes , 747 A.2d 943 (Pa.Super. 2000). See also Lackner v. Glosser , 892 A.2d 21 (Pa.Super. 2006) (explaining arguments must adhere to rules of appellate procedure and arguments which are not appropriately developed are waived on appeal; arguments not appropriately developed include those where party has failed to cite any authority in support of contention); Estate of Haiko v. McGinley , 799 A.2d 155 (Pa.Super. 2002) (stating appellant must support each question raised by discussion and analysis of pertinent authority; absent reasoned discussion of law in appellate brief, this Court's ability to provide review is hampered, necessitating waiver on appeal).
Instantly, Mother presented her first issue on appeal in her concise statement as follows: "The [trial] court erred as a matter of law in its November 23, 2015 Order by ordering that 'the Custody Order resulting from the Conference with [the] Custody Master...is affirmed and shall be followed effective as of the date of this order, a copy of which is attached.'" (Mother's Rule 1925(a)(2)(i) statement, filed December 22, 2015, at 1). Significantly, Mother failed to state how or why the trial court erred; and the trial court did not address this issue in its Rule 1925(a) opinion. Based on Mother's vague assertion of error in her concise statement, Mother's first issue is waived. See Lineberger , supra. Additionally, Mother cites no legal authority whatsoever to support her second and third issues. Mother's failure to develop these arguments with discussion and analysis of pertinent legal authority waives those issues on appeal. See Lackner , supra ; Estate of Haiko , supra ; Butler , supra. Mother also failed to preserve her challenge to the court's summer schedule in her concise statement, so that claim is waived for this reason as well. See Lineberger , supra.
The trial court's Rule 1925(a) opinion adopted its December 10, 2015 Decision & Final Custody Order.
Moreover, regarding her first issue, Mother relies on Pa.R.C.P. 1915.4-3(a) (stating: "In those jurisdictions that utilize an initial non-record proceeding such as a conciliation conference or office conference, if no agreement is reached at the conclusion of the proceeding, the conference officer or conciliator shall promptly notify the court that the matter should be listed for trial"). Nevertheless, Mother ignores the relevant local rules of civil procedure applicable in this case, which permit a "custody master" to file a recommended order when an agreement is not reached by the parties, and to submit findings of fact, conclusions of law, and a written report. See B.R.C.P. 1915.26(a), (d), (g) (stating court shall refer all actions for custody, partial custody and visitation of minor children to custody master for purposes of conciliation conference; custody master may conduct informal hearing, take testimony, and hear position of parties relative to custody, partial custody, and visitation; if written settlement is not reached, custody master shall file recommended order; custody master may also file in its discretion findings of fact, conclusions of law, and written report). See also Pa.R.C.P. 1915.4-1, Note (explaining Berks County has certified to Domestic Relations Procedural Rules Committee that its custody proceedings generally are conducted in accordance with Pa.R.C.P. 1915.4-3). Further, the trial court held a de novo custody trial on November 20, 2015. Although the court agreed with the custody master's recommendation to award primary physical custody of Child to Father, nothing in the record supports Mother's assertion that the court merely "rubber stamped" the master's recommendation. Rather, the record makes clear the trial court issued detailed findings of fact and conclusions of law in support of its final custody order on December 10, 2015.
This rule does not refer to a "hearing officer," as Mother claims.
Concerning Mother's second issue, the court acknowledged that the custody trial took place less than a week before the Thanksgiving holiday. The court entered its initial custody decision on November 23, 2015, agreeing with the custody master's recommendation for Father to have primary physical custody of Child, attaching the custody master's proposed custody order, and supplying the "Code of Conduct" appendix. After the Thanksgiving holiday, the court issued its Decision & Final Custody Order on December 10, 2015, detailing its findings of fact and conclusions of law and analyzing each relevant custody factor. The December 10, 2015 custody order contained three appendices regarding "Code of Conduct," relocation, and shared legal custody. The record suggests the court wanted to give the parties its custody decision before the Thanksgiving holiday, even though the court had not yet had an opportunity to explain its rationale; and that the court inadvertently omitted two appendices from its November 23, 2015 order. The trial court was free to modify and expand on its initial custody order within thirty days, while the court still had jurisdiction. See 42 Pa.C.S.A. § 5505 (stating: "Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed"). The November 23, 2015 and December 10, 2015 custody orders do not create confusion because they are virtually identical and the minor changes in the language used do not involve the parties' periods of custodial time.
Mother does not argue on appeal that the court erred by failing to issue its analysis of the relevant custody factors contemporaneous with the November 23, 2015 custody decision.
With respect to Mother's third issue about the holiday schedule, Child would not be required to travel three hours on December 24th and December 25th every year, as Mother claims. For example, Child is not required to travel at all on December 24th in odd-numbered years because Child will already be in Father's custody and Father has custody of Child on December 24th in those years. The parties are also free to agree to more convenient custodial arrangements. ( See Appendix A to Decision & Final Custody Order, dated December 10, 2015, at 1-2) (stating predetermined schedules are not written in stone and parties should be flexible for sake of child). Mother's mother and brother also reside in New York, not far from Father. Mother is free to exercise some of her custodial time in New York with her family. Therefore, Mother's first three issues on appeal are waived, but they would merit no relief in any event.
Turning to Mother's fourth issue, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable A. Joseph Antanavage, we conclude Mother's fourth issue merits no relief. The trial court's Decision & Final Custody Order comprehensively discusses and properly disposes of this issue. ( See Decision & Final Custody Order, dated December 10, 2015, at 7-11) (examining each relevant factor under applicable statute; concluding award of primary physical custody of Child to Father is in Child's best interest). Accordingly, Mother's first three issues are waived and would merit no relief in any event; and we affirm on the basis of the trial court's December 10, 2015 opinion regarding Mother's fourth issue.
In support of her fourth issue, Mother simply asks this Court to favor her testimony and the testimony provided by her witnesses. The trial court credited the testimony of Father and his witnesses, and we will not disturb those credibility determinations. See S.J.S., supra.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/9/2016
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