Opinion
J-S76015-18 No. 914 WDA 2018
02-22-2019
J.M., Appellant v. M.M., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated May 25, 2018
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-15-005302-001 BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J. MEMORANDUM BY BENDER, P.J.E.:
J.M. ("Mother") appeals from the custody order dated May 25, 2018, that awarded M.M. ("Father") sole legal custody of A.B. (born in April of 2005), J.M. (born in April of 2007), and S.M. (born in September of 2009) (collectively "Children"). The May 25th order also awarded Father primary physical custody of the Children and partial physical custody to Mother. After review, we affirm.
Both Mother and Father filed pro se briefs with this Court.
The scope and standard of review in custody matters is as follows:
[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. ... However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. ... Thus, an appellate court is
empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's factual findings; and thus, represent a gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard v. Baker , 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover,
on issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.
The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court's consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).
R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court's conclusions. Ketterer v. Seifert , 902 A.2d 533, 539 (Pa. Super. 2006).
Mother raises the following six issues, some of which include numerous sub-issues, for our review:
1. The [j]udge erred by awarding [Father] sole legal custody when the weight of the evidence under the factors of custody favored Mother, including but not limited to the subparts in paragraph two below.
2. The [j]udge erred by awarding Father primary physical custody when the weight of the evidence under the factors for custody favored Mother, including but not limited to:
a. by finding that Mother discourages a relationship between the Father and [] Children when the parties
were practicing shared legal custody and [] Children demonstrated strong bonds and positive relationships with both parents;
b. by finding that Mother performed most of the parental duties but weighing this factor in favor of Father, anticipating that he is capable of performing the same;
c. by first finding that the factor of stability was not pertinent in this case except for later inappropriately weighing the factor against Mother for school absences;
d. by giving Father school choice authority under circumstances that made Woodland Hills not in the best interest of [] Children;
e. by not considering the well-reasoned preferences of all or any of [] Children about the physical custody schedule; ...
f. by finding that Mother attempts to turn [] Children away from Father when there was insufficient evidence of the same;
g. by finding that, when it come[s] to the question of who is more likely to maintain a loving, stable, consistent and nurturing relationship for [] Children's emotional needs, both parties fail but later weighs this factor in favor of Father despite acknowledging that Mother cares for all their needs and that Father denies their needs if he doesn't have the exact same view as Mother[;]
h. by finding that Mother is the heavier source of conflict despite the weight of the evidence favoring a finding against Father and despite finding that Father does not compromise with health care and education providers and fails to provide for [] Children in those areas, those areas being a source of conflict.
3. The judge erred by creating a custody Order that divests Mother [of] her parental role without substantive and sufficient evidence that such is in the best interest of [] Children, including but not limited to:
a. by ordering that Mother is prohibited from bringing any concerns to the attention of [] Children's school and being prohibited from contacting the school without Father's authorization;
b. by ordering that Mother is prohibited from attending all parent teacher conferences, open houses, and other regularly scheduled school meetings and activities unless authorized by Father and by requiring Mother to leave if there is an issue at one of these events irrespective of the circumstances;
c. by ordering that only Father can schedule and attend routine and specialist medical appointments unless Mother is authorized by Father to attend;
d. by ordering that Mother cannot speak to any medical or education providers if Mother thinks there is an issue unless Father authorizes the same[,] which is particularly egregious when the [c]ourt found that Mother had the leading role in [] Children's healthcare and education path;
e. by requiring Mother to pay for all activities agreed upon by the parties if Father merely asserts he cannot afford the same;
f. by reducing Mother's physical custody time to five nights every two weeks when the parties equally shared physical custody;
g. by instructing Father to give reasonable good faith effort at consideration of Mother's opinion when Father demonstrated that his choices were against [] Children's interest simply because Mother asserted the same. Additionally, this provision is too subjective and not enforceable or practical in application for Mother to have any parental role in [] Children's lives;
h. by limiting communication between the Mother and [] Children during Father's custodial time when Mother and [] Children enjoyed regular contact and doing so despite even Father not wanting communication limited;
i. by sacrificing Mother's holiday time for Father's need for holiday time without real reason;
j. by unlawfully limiting Mother's ability to contact [] Children's medical and education providers solely for the purpose of obtaining medical records;
k. by failing to recognize and account for the close and bonded relationship of [] Children to their Mother.
4. The [j]udge erroneously premised her Order upon "testimony from all custody related motions" because there is no "testimony" provided in motions court as such is not a fact[-]finding
proceeding unless the parties were sworn in and proper procedure was followed.Mother's brief at 8-12.
5. The [j]udge erroneously failed to set forth what specific details of the "testimony from all custody related motions" she relied upon when rendering her decision.
6. The [j]udge committed errors through various evidentiary rulings that cannot be specifically identified at the time this statement is filed due to [] Children's Fast Track requirement that the statement be filed with the Notice of Appeal.
Mother's Statement of the Questions Involved does not comply with Pa.R.A.P. 2116 in that the issues are not concisely expressed without unnecessary detail. Mother also overlooks the explanation contained in Rule 2116 that provides that the statement "will be deemed to include every subsidiary question fairly comprised therein." Moreover, the argument section of Mother's brief does not comply with Pa.R.A.P. 2119(a), which states:
The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citations of authorities as are deemed pertinent.Mother has neither divided the fifty-page argument section of her brief to match the list of questions she raises, nor has she included any citations to authorities to support her arguments. The only citations included in her brief are located in her statement of the scope/standard of review. In reviewing Mother's appeal, we have overlooked these omissions/errors and will not quash this appeal, although it is within our power to do so. See First Union Mortgage Corp. v. Frempong , 744 A.2d 327, 333 (Pa. Super. 1999). Rather, due to the certified record and the trial court's comprehensive opinion, we conclude that the issues are reviewable.
Here, in its opinion, the trial court set forth an extensive, factual and procedural history of this case and included information relating to the testimony of witnesses presented at trial. In addition, the trial court discussed and applied the custody factors contained in 23 Pa.C.S. § 5328. The court also explained its reasons for the March 25, 2018 order and addressed the issues Mother raised in her concise statement of errors complained of on appeal.
It is apparent that Mother's arguments are essentially requesting that this Court re-find facts and re-weigh the evidence. However, our standard of review requires that we "accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations." C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). Rather, 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 finds of the trial court." E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011).
We have reviewed the certified record, Mother's brief, the applicable law, and the thorough, well-reasoned opinion authored by the Honorable Eleanor L. Bush of the Court of Common Pleas of Allegheny County, dated September 14, 2018. We conclude that Judge Bush's extensive opinion properly disposes of the issues presented by Mother in this appeal. Accordingly, we adopt the trial court's opinion as our own and affirm the custody order on that basis.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/22/2019
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