Opinion
J-S19036-15 No. 2669 EDA 2014 No. 2980 EDA 2014
06-15-2015
J.N., Appellant v. L.M., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered on August 21, 2014, in the Court of Common Pleas of Montgomery County, Civil Division, at No(s): 08-08736 Appeal from the Order entered on September 12, 2014, in the Court of Common Pleas of Montgomery County, Civil Division, at No(s): 08-08736 BEFORE: STABILE, JENKINS, and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
J.N. ("Father"), pro se, appeals from the Final Custody Order entered on August 21, 2014, awarding him and L.M. ("Mother") shared legal custody of their child, L.N., born in April 1999 ("Child" or "L."), and Mother primary physical custody, subject to periods of partial custody in Father. Father also appeals from the trial court's September 12, 2014 Order, requiring him to contribute 35% of Child's Springside Chestnut Hill Academy ("SCH") private school tuition for the 2014-2015 school year. We affirm both Orders.
Father is an attorney admitted to practice in Pennsylvania.
The trial court set forth the relevant factual and procedural history underlying these appeals in its Pa.R.A.P. 1925(a) Opinion; we incorporate the court's recitation herein by reference. See Trial Court Opinion, 9/25/14, at 1-2.
As an addendum, we observe that following Father's filing of several Motions challenging the trial court's sealing of the notes of testimony from the trial court's November 7, 2012 in camera interview of Child and A.N. (hereinafter "the in camera transcript"), the trial court entered an amended Order on December 19, 2012, directing that the in camera transcript was "supersealed."
Following the trial court's entry of its Final Custody Order on August 21, 2014, Father timely filed a Notice of Appeal, along with a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On August 26, 2014, Mother filed an "Emergency Petition for Special Relief," seeking an order requiring Father to contribute 35% (approximately $9,000 after the application of financial aid) of Child's tuition costs for SCH. After a hearing, the trial court entered an Order, on September 12, 2014, determining that the parties were bound by the terms of their prior Arbitration Conclusions/Award ("Arbitration Award"), which was merged into the parties' divorce Decree, such that Father must contribute 35% of Child's SCH tuition for the 2014-2015 school year. Moreover, the trial court found that Father was unable to demonstrate a financial hardship or inability to pay.
Father timely filed a Notice of Appeal from the September 12, 2014 Order. Though Father did not simultaneously file therewith a concise statement of errors complained of on appeal, he promptly complied with the trial court's Order to file his Concise Statement.
We deem Father's procedural misstep in failing to simultaneously file his Concise Statement with his Notice of Appeal harmless, since it was not prejudicial to any party. See In re K.T.E.L , 983 A.2d 745, 747 (Pa. Super. 2009).
In October and November 2014, Father filed Motions in the trial court seeking to correct and supplement the certified record with certain documents, including the in camera transcript. In response, the trial court entered an Order directing the trial court's prothonotary to transmit to this Court a supplemental certified record, which included the in camera transcript and every document sought by Father. The trial court prothonotary sent this panel a supplemental record, which included the in camera transcript, and the other notes of testimony from A.N.'s in camera testimony on February 3, 2012, under seal.
On October 7, 2014, Father filed in this Court a Motion for special relief ("Motion to release transcript") requesting the release of the in camera transcript, which the trial court had "supersealed." On February 17, 2015, this Court denied Father's Motion to release transcript without prejudice to Father's right to reraise the matter before this panel. Father appears to reraise his Motion to release transcript in his brief and reply brief. See Father's Brief at 113; Father's Reply Brief at 28. We dismiss the Motion as moot, since the trial court included the in camera transcript in the certified record.
On November 7, 2014, this Court, sua sponte, consolidated Father's two appeals.
On appeal, Father presents the following issues for our review:
1. Did the trial court abuse its discretion and/or commit an error of law when it exceeded its judicial authority by modifying the custody of a teenager, on a non-temporary basis, based solely on an allegation of contempt, prior to conducting a custody hearing, without considering the 16 factors contained in the Pennsylvania Child Custody Act, and in an effort to punish Father?Father's Brief at 18-20.
2. Did the trial court abuse its discretion or commit an error of law when it misapprehended P[ennsylvania] [c]hild [c]ustody law and entered a final custody [O]rder on August 21, 2014[,] that is unsupported by the record facts, incongruent with [Child's] best interests, and in contravention to P[ennsylvania] statutory and decisional law?
3. Did the trial court abuse its discretion when it denied Father's [M]otion(s) for the [trial] court judge to recuse, considering, inter alia, that during a hearing on Father's recusal [M]otion, the [trial] court did not refute that it [had] violated Father's due process rights?
4. Did the trial court abuse its discretion or commit an error of law by "supersealing" notes of testimony from the parties, from the attorneys of record, from proper appellate review, and in contravention to Constitutional and Pennsylvania law?
5. Did the trial court abuse its discretion when it ordered [Child's] enrollment at [SCH] and continued enrollment under arbitrary conditions, without a finding [that Child's] enrollment was a reasonable need?
6. Did the trial court abuse its discretion when it ordered Father to contribute 35% of [Child's SCH] tuition in 2014-2015, when the same [trial] court did not order Father to contribute in 2013-2014, [and] the same [trial] court previously denied his [P]etition for a dependency exemption to help fund [Child's] education, when Father does not currently earn 35% of the parties['] net income, when Mother concedes SCH Academy attendance is a luxury, when [A.N.] struggled and barely graduated from SCH at great cost, and Mother has failed to prove[,] and the lower court has not found, that [Child's] SCH enrollment is a reasonable need?
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. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
Additionally, this Court has stated that
[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 knowledgeKetterer v. Seifert , 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.
Section 5338 of Child Custody Act ("the Act") 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.A. § 5338; see also M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013) (stating that "[t]his standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.") (citation omitted). Moreover, in any custody action between two parents, there is no presumption that custody should be awarded to a particular parent. 23 Pa.C.S.A. § 5327(a). Section 5328(a) of the Act sets forth sixteen factors (collectively referred to as "the sixteen best interest factors") that a trial court must consider when awarding custody. Id. § 5328(a).
See 23 Pa.C.S.A. §§ 5321 to 5340; see also C.R.F., 45 A.3d at 445 (stating that, where, as here, 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 his first issue, Father challenges the trial court's December 14, 2012 Interim Custody Order (which awarded Mother primary physical custody of Child, and awarded Father partial custody), as both an improper contempt order and an improper modification order. See Father's Brief at 44-54. Father contends that the trial court lacked authority to find him in civil contempt of the underlying custody Order, and modify custody. See id. (relying on P.H.D. v. R.R.D., 56 A.3d 702, 706-07 (Pa. Super. 2012) (holding that the trial court violated due process of law by modifying a custody order without holding a custody modification hearing, where the trial court had before it only a contempt petition), and Langendorfer v. Spearman , 797 A.2d 303, 308-09 (Pa. Super. 2002) (same)). Father also asserts that the Interim Custody Order was an improper modification order because it was not temporary, was not based upon any emergency, and continued in effect until the trial court entered the Final Custody Order on August 21, 2014. Father's Brief at 44, 54. Father argues that the trial court improperly imposed the Interim Custody Order to "punish" him, without proper notice and an opportunity to be heard at a full custody modification hearing, and without adequately considering the sixteen best interest factors. See id. at 44-45, 47-48.
Father is essentially challenging the propriety of the Interim Custody Order. This Order, however, was not the trial court's final pronouncement concerning the custody proceedings, and was not appealable. See Kassam v. Kassam , 811 A.2d 1023, 1028 (Pa. Super. 2002) (stating that, where a trial court enters an order, but expressly retains jurisdiction and schedules a hearing for a date certain, such an interim custody order is not final and appealable). "[A] custody order will be considered final and appealable only if it is both: 1) entered after the court has completed its hearing on the merits; and 2) intended by the court to constitute a complete resolution of the custody claims pending between the parties." Id. at 1027 (citation omitted).
Here, the trial court entered its Final Custody Order after having conducted a complete custody hearing, which afforded Father notice and an opportunity to be heard. The record confirms that the trial court considered the sixteen best interest factors in this matter in relation to its Final Custody Order. See Findings of Fact, 8/20/04, at 2-7 (wherein the trial court thoroughly considered and discussed the sixteen best interest factors and the evidence presented at the custody hearings relating to Child). Additionally, the trial court explained that
Father provides no evidence for his claim that the ... [Interim C]ustody [O]rder was entered to "punish" Father. [The trial court] only has the best interest of the child in mind when creating a custody order. The [trial c]ourt concedes that the ... [Interim C]ustody [O]rder was entered on an emergency basis (and without a full custody hearing and analysis of the [sixteen best interest] factors); however, [the court] cannot agree that the entry of this [] [O]rder[,] after the filing of an emergency [P]etition[,] was a violation of Father's due process rights.Trial Court Opinion, 9/25/14, at 5. We agree and, thus, find no merit to Father's argument that the trial court improperly rendered the Interim Custody Order.
In his second issue, Father argues that, in the Final Custody Order, the trial court erred in awarding Mother primary physical custody. See Father's Brief at 60-76. Father urges that the trial court's interpretation of the sixteen best interest factors was defective. See id. Father asserts that Child indicated her preference to live with him. Id. at 60. Additionally, Father argues that, given Mother's allegedly insufficient parental history with the parties' older daughter, A.N., the trial court should have ordered Child to reside primarily with him. See id. at 57-60. Father contends that the trial court's inferences and deductions about Mother's parenting history with regard to A.N. are not supported by the record. See id. at 57-59.
This Court has stated that
[a]lthough the express wishes of a child are not controlling in custody decisions, such wishes do constitute an important factor that must be carefully considered in determining the child's best interest. The weight to be attributed to a child's testimony can best be determined by the judge before whom the child appears.Ketterer , 902 A.2d at 540 (citations and quotation marks omitted).
In its Pa.R.A.P. 1925(a) Opinion, the trial court addressed Father's claims, stated that it had considered Mother's parenting history regarding A.N., and Child's preference to spend more time with Father, and opined that it properly exercised its discretion in rejecting Father's challenge to the court's awarding primary physical custody to Mother. See Trial Court Opinion, 9/25/14, at 4-5, 7-8; see also Ketterer , supra. After our careful review of the certified record, we find that the trial court's findings, including its determinations concerning Child's preference and Mother's parenting history with A.N., are supported by competent evidence of record, and therefore affirm based upon the trial court's Opinion concerning this claim. See Trial Court Opinion, 9/25/14, at 4-5, 7-8; see also C.R.F., supra (stating that an appellate court must defer to the trial court's credibility and weight assessments).
Also in his second issue, Father asserts that, in imposing paragraph 8 of the Final Custody Order, the trial court improperly included modification of custody as a possible sanction for a party's future contempt. See Father's Brief at 55-56. In support of this claim, Father relies on G.A. v. D.L., 72 A.3d 264, 269-70 (Pa. Super. 2013) (where the trial court modified the parties' existing custody order at a contempt hearing by reinstating a prior custody order, holding that such modification was improper because there was no petition for modification of custody before the trial court and both parties were not on notice that custody would be at issue regarding the contempt hearing). Father's Brief at 55-56.
Paragraph 8 provides as follows: "Any further attempt to alienate [Child] or disparage the other parent or his or her family in front of [Child] may result in sanctions including, but not limited to, an award of attorneys' fees, a modification of custody and/or incarceration." Final Custody Order, 8/21/14, ¶ 8 (emphasis omitted).
We find the decision in G.A. inapplicable to the instant matter, as the trial court in that case improperly had modified a custody order without having a custody petition before the court. Here, the certified record reflects that neither party has yet sought a custody modification based on paragraph 8 of the Final Custody Order, nor has the trial court enforced paragraph 8 to modify custody without notice to either party that modification is at issue. Accordingly, Father's argument concerning paragraph 8 is premature and does not entitle him to relief.
Next, Father argues that the trial court judge, the Honorable Kelly C. Wall ("Judge Wall"), abused her discretion by denying his Motions to recuse. Father's Brief at 77-80. Father's basis for seeking Judge Wall's recusal is that she allegedly violated his due process rights under the United States and Pennsylvania Constitutions by modifying custody of Child in the Interim Custody Order, without affording him notice and an opportunity to be heard at a full custody hearing. See id. at 77-79. Father asserts that, at the August 8, 2013 recusal hearing, Judge Wall did not refute that she had deprived Father of due process. Id. at 78. Citing the Canons of the Code of Judicial conduct, Father contends that Judge Wall should have recognized her bias against him, and recused herself. See id. at 77-84.
We observe that although Father's Brief is voluminous, he sought, and was granted, permission from this Court to exceed the word limit contained in Pa.R.A.P. 2135.
"The party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal." Commonwealth v. Darush , 459 A.2d 727, 732 (Pa. 1983). Generally, a motion for recusal is initially directed to and decided by the judge whose impartiality is being challenged. Goodheart v. Casey , 565 A.2d 757, 763 (Pa. 1989). Where a judge rules that she can hear and dispose of a case fairly and without prejudice, that decision will be overruled on appeal only for an abuse of discretion. Reilly by Reilly v. SEPTA , 489 A.2d 1291, 1300 (Pa. 1985).
In the Pa.R.A.P. 1925(a) Opinion, Judge Wall explained her reasons for denying Father's two Motions to recuse, determining that she properly excercised her discretion in continuing to preside over the case in an unbiased fashion. See Trial Court Opinion, 9/25/14, at 7. After reviewing the record, we discern no abuse of discretion by Judge Wall in making this determination. Father failed to show that Judge Wall has exhibited bias, prejudice, or unfairness against him. Accordingly, we affirm with regard to this issue based upon the trial court's Opinion. See id.
In his fourth issue, Father contends that the trial court abused its discretion and/or erred as a matter of law when it "supersealed" the in camera transcript. See Father's Brief at 84-99. He argues that the trial court's "supersealing" of this transcript improperly precluded him from addressing any relevant issues concerning the in camera hearing on appeal, and impeded appropriate appellate review. Id. at 91-99; Father's Reply Brief at 17. Father alleges that the trial court's practice is a problem of widespread concern in the Montgomery County Bar. Father's Reply Brief at 18. Father relies on Pa.R.C.P. 1915.11(b) and Ottolini v. Barrett , 954 A.2d 610 (Pa. Super. 2008), in support of his assertion of error. See Father's Brief at 85-86, 96-97.
Pennsylvania Rule of Civil Procedure 1915.11(b) provides as follows:
(b) The court may interrogate a child, whether or not the subject of the action, in open court or in chambers. The interrogation shall be conducted in the presence of the attorneys and, if permitted by the court, the parties. The attorneys shall have the right to interrogate the child under the supervision of the court. The interrogation shall be part of the record.Pa.R.C.P. 1915.11(b) (emphasis added).
In Ottolini , the father appealed an order granting primary physical custody of the parties' children to the mother. The father challenged the trial court's denial of an opportunity for him and his counsel to be present and participate in interviewing the children, and the court's failure to make the interview part of the record by having a court reporter present. Ottolini , 954 A.2d at 612-13. The trial court acknowledged that it had not created any record of the interviews with the children, explaining that its practice preserved the confidentiality of the children and protected them from any recriminations from the parents or their counsel. Id. On appeal, a panel of this Court concluded that the trial court had misapplied the law, and the plain language of Rule 1915.11(b), and stated that it was clear from the trial court's opinion that the court had relied on the in camera interrogations. Id. at 613. This Court additionally concluded that, absent the children's testimony, it could not assess whether the trial court had properly weighed the evidence. Id. at 615.
Here, in the trial court's Pa.R.A.P. 1925(a) Opinion, the court addressed Father's claims, and opined that it properly rejected Father's challenge to the court's sealing and "supersealing" of the in camera transcript. See Trial Court Opinion, 9/25/14, at 5-6. The trial court pointed out that although it had "supersealed" the in camera transcript from the November 7, 2012 hearing, both Child and A.N. subsequently testified in open court at the February 24, 2014 custody hearing, and Father questioned both of them at that time. See id. at 6 (opining that Father's challenge to the supersealing of the in camera transcript should therefore be deemed moot). We agree with the trial court that the sealing and supersealing of the in camera transcript did not impede our appellate review, as it is included in the certified record for this Court's review, and Father's claim in this regard is moot. See id. at 5-6. Accordingly, we do not herein rule on the propriety of the trial court's sealing and supersealing of the in camera transcript.
We remind the trial court that it must abide by Pa.R.C.P. 1915.11(b), and the holding in Ottolini , which mandated that such transcripts must be included in the record for appellate review. The parties should not have to petition the court to include the transcripts in the certified record.
Finally, we will address Father's fifth and sixth issues simultaneously, as they are related. Father argues that the trial court erred by applying the incorrect legal standard for private school enrollment, ignoring Pennsylvania statutory and case law, and misinterpreting the parties' binding Arbitration Award. See Father's Brief at 43; 99-100, 106-08. According to Father, the trial court failed to consider that, in Pennsylvania, the court may order the parties to pay for private schooling if it is demonstrated that private school is a reasonable need, and such private schooling is consistent with the family's standard of living and station in life prior to separation. Id. at 99-100 (citing Pellish v. Gerhard , 701 A.2d 594 (Pa. Super. 1999)). Father complains that the trial court did not provide a finding or any analysis of how Child's enrollment in SCH is a reasonable need. See Father's Brief at 106-07. Additionally, Father asserts that the trial court ignored Pa.R.C.P. 1910.16-6(d), which, in relation to private school tuition, provides that, "[i]f the court determines that one or more such needs are reasonable, the expense thereof shall be allocated between the parties in proportion to their net incomes." Id.; see also Father's Brief at 106-08 (emphasizing that the language of Rule 1910.16-6(d) concerns the parties' net incomes, not their "earning capacity"). Father further complains that the trial court Order, which directed him to contribute 35% of the tuition for Child's SCH enrollment, is unsupported by the evidence. Id. at 107. Father asserts that there is no record evidence that he earns 35% of the parties' combined net incomes (i.e., the percentage that the trial court assigned to Father for the purpose of allocating Child's SCH tuition expenses). Id. at 108.
When evaluating a [child] support order, this Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. ... In addition, we note that the duty to support one's child is absolute, and the purpose of child support is to promote the child's best interests.Morgan v. Morgan , 99 A.3d 554, 556-57, 559 (Pa. Super. 2014) (citations and quotation marks omitted).
* * *
[T]he trial court, as the finder of fact, is entitled to weigh the evidence and assess the credibility of witnesses. A support order will not be disturbed on appeal unless the trial court failed
to consider properly the requirements of the Rules of Civil Procedure Governing Actions for Support, Pa.R.C.P. 1910.1 et seq., or abused its discretion in applying these Rules.
The Morgan Court observed that Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4), governing earning capacity for the purpose of support actions, provides, inter alia, as follows:
If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the party's earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity.Morgan , 99 A.3d at 558 (emphasis omitted) (quoting Pa.R.C.P. 1910.16-2(d)(4)); see also Reinert v. Reinert , 926 A.2d 539, 542 (Pa. Super. 2007) (stating that "[i]n determining a parent's ability to provide support, the focus is on earning capacity rather than on the parent's actual earnings.") (citation omitted).
In the instant case, the trial court made the following findings of fact concerning Child's enrollment in SCH and Mother's Emergency Petition for Special Relief:
Through an [O]rder[] dated August 9, 2013, the [trial court] permitted [Child] to attend SCH for ninth grade[,] contingent upon Mother being solely responsible for the tuition.[FN 1] The [trial c]ourt specifically stated that "this decision is not based upon a finding that Father lacks the ability to pay private school tuition[,] and therefore this issue can be
re-evaluated by the [trial court] in the future, if necessary."[FN 2] The [c]ourt then noted that it would conduct a hearing in the future to review [Child's] academic performance and determine whether she would be returning to SCH and/or whether Father should have any financial obligation for tuition moving forward.
[FN 1] The [trial court] entered the [O]rder permitting [Child] to attend SCH due to the problems [] [C]hild was experiencing at public school.
[FN 2] Although the [parties'] Arbitration Award contains a provision that would have allowed [the trial] court to assess Father with 70 percent of the tuition costs, the [c]ourt was cognizant of the fact that Father was already contributing to [A.N.'s] tuition[,] and paying child support for the two children.
The parties appeared before the [trial court] for a ... hearing on September 8, 2014[,] on Mother's [E]mergency [P]etition. At that hearing, Mother testified that she sought to re-enroll [Child in SCH] because [Child] performed well academically last year (earning a 3.6 grade point average). Mother argued that the terms of the parties' Arbitration []Award (which was merged into the parties' divorce [D]ecree) require Father to pay a portion of private school tuition, specifically [providing that] "the parties shall pay for the children's private school expenses and the expenses for camp or other summer activity as reflected on the bills for such private school/camp in the following percentages: Husband 70%/Wife 30%." See [] Arbitration Award, p. 31. Mother then introduced the current support [O]rder[,] in which Father was held to an earning capacity of $100,000. This [O]rder was signed by the parties on June 18, 2014.
Father argued that he is currently in a different financial situation and his actual earnings are less than his earning capacity. Father is 54 years old and has both a juris doctorate and a master in business administration degree. Father currently runs ... an independent packaging company[,] and [he] also serves as an arbitrator for the Montgomery County Court of Common Pleas. [] Father testified that [the p]ackaging [c]ompany lost its largest client approximately three years ago[.] Father [also] testified that he only takes one arbitration case per quarter. Father has represented himself primarily in
this litigation since 2011; however, he testified that he is not representing any other clients. Father owns three automobiles and lives in a five[-]bedroom house, and he has a retirement account[,] which contains approximately $300,000. There are no arrears on Father's child support case.
The [trial c]ourt notes that Father did not file support exceptions or an appeal to the current support [O]rder. Nor has Father filed a petition to modify based on any alleged change of circumstances. Father provided no current documentation demonstrating his alleged inability to pay (e.g. bills, pay stubs). Rather, Father testified to the amounts of certain bills and then ambiguously alleged that the rest of his bills exceed his net earning capacity per month. Consequently, it is this [c]ourt's conclusion that the evidence presented indicates that the parties are bound by the terms of the Arbitration []Award.[FN 3] Additionally, the [c]ourt concludes that Father was unable to demonstrate a financial hardship or inability to pay.
Trial Court Findings of Fact, 9/11/14, at 1-2 (footnotes in original, one footnote omitted). Our review discloses that the trial court's findings are supported by the record.[FN 3] There was no evidence presented to indicate Father challenged the [A]rbitration [A]ward through the proper procedure (in an appeal to the Court of Common Pleas) through a petition to vacate or modify the award at the time it was entered. Rather, the award was entered as an [O]rder when it was merged into the parties' divorce [D]ecree. See [] Lowther v. Roxborough Memorial Hosp., 738 A.2d 480, 485 (Pa. Super. 1999).
Accordingly, the trial court considered and rejected Father's allegations of his decreased ability to pay for private school tuition for Child, imputing to Father an income equal with his earning capacity. See Pa.R.C.P. 1910.16-2(d)(4); Morgan , supra. Moreover, as the parties' Arbitration Award included a specific provision concerning their respective obligations to pay for Child's private school tuition, the trial court was not required to make any finding that private schooling was a "reasonable need." We discern no abuse of the trial court's discretion by its finding that Father failed to prove that he lacks sufficient income to pay educational support for Child to attend SCH. We, therefore, conclude that Father's fifth and sixth issues lack merit.
Father also argues in connection with his sixth issue that the trial court, in an effort to prejudice his appeal, took judicial notice of the June 18, 2014 child support Order (which is contained in the certified record), instead of allowing the actual Order to be admitted into evidence. Father's Brief at 109. Father did not identify this separate issue in his Statement of Questions Involved section, and it is therefore waived. See Pa.R.A.P. 2116(a) (providing that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."). However, even if this claim was not waived, we would conclude that it lacks merit based upon the trial court's rationale in its Supplemental Trial Court Opinion. See Supplemental Trial Court Opinion, at 10/28/14 at 1, n.1 (wherein Judge Wall stated that "there is no appearance of impropriety when the [trial c]ourt takes judicial notice of documents that are already contained within the record."). --------
Orders affirmed. Father's Motion to release transcript dismissed as moot. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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