Opinion
J-A22021-16 No. 431 MDA 2016
11-18-2016
J.S.F. v. K.G.F., N/K/A K.G.S. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 3, 2016
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-09-09368 BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. MEMORANDUM BY PANELLA, J.
K.G.F. n/k/a K.G.S. ("Mother") appeals from the March 3, 2016 order in the Court of Common Pleas of Lancaster County that modified the existing custody order with respect to her son, P.F., born in May 2009 ("Child"). We affirm.
The Honorable Jeffrey J. Reich issued the subject order. The record reveals that he has presided over the underlying custody matter since it commenced in 2009.
This appeal arises from a petition for modification and contempt in custody filed by Mother against J.S.F. ("Father") on April 15, 2015, wherein she requested primary physical custody and that Child be enrolled in the Cocalico School District for the 2015/2016 school year, among other things. Father filed an answer and new matter, wherein he requested primary physical custody and for Child to continue attending elementary school in the School District of Lancaster.
A hearing occurred on January 8, 2016, January 14, 2016, and February 17, 2016. Mother testified on her own behalf, and she presented the testimony of A.M.W., her boyfriend; R.E.H., Jr., Child's maternal great uncle; P.B.S., Child's maternal grandfather; and Kate Egerter, a caseworker from Lancaster County Children and Youth Services. In addition, Mother presented the testimony of A.R.E., her then twelve-year-old son, who is Child's half-brother. Father testified on his own behalf, and he presented the testimony via telephone of M.D., his colleague, and A.C., his neighbor whose son is a friend of Child.
In its opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), the trial court set forth factual findings, which the testimonial evidence supports. As such, we adopt them herein. See Trial Court Opinion, 4/15/16, at 3-12.
Importantly, the trial court found that the parties lived a driving distance of 35 to 45 minutes apart and had been operating "under a court order with a shared physical custody arrangement . . . whereby the Child was exchanged several times each week on a rotating bi-weekly schedule." Trial Court Opinion, 4/15/16, at 3, ¶ 5; see also Trial Court Opinion, 3/3/16, at 9. Further, Mother and Father are employed as educators in the School District of Lancaster. See id. at 3, ¶¶ 2-3. At the time of the subject proceedings, Child was attending first grade in the School District of Lancaster. See id. at 5, ¶¶ 19-20. Specifically, Child was attending the Buchanan Elementary School, which was a driving distance of five minutes from Father's home and thirty minutes from Mother's home. See id. at 7, ¶¶ 28-29.
By order entered on March 7, 2016, the trial court granted Father primary physical custody during the school year, and Mother partial physical custody on alternating weekends, from Friday at 5:00 p.m. until Sunday at 5:00 p.m., and every Wednesday from after school until the beginning of school on Thursday. The court directed that Child continue to attend the Buchanan Elementary School. The court granted the parties shared physical custody on an alternating weekly basis during the summer. Further, the court granted the parties shared legal custody.
Mother timely filed a notice of appeal and a concise statement pursuant to Rule 1925(a)(2)(i) and (b). On April 15, 2016, the trial court filed its opinion pursuant to Rule 1925(a).
On appeal, Mother presents the following issues for our review:
I. Did the [t]rial [c]ourt err as a matter of law by its failure to adhere to Pa.R.C.P. 1915.4(c) in that the trial shall be commenced within 90 days of the date the scheduling order is entered?
II. Did the [t]rial [c]ourt err and/or abuse its discretion in denying Mother's Emergency Petition to Bypass the custody modification conference, when it knew that there was limited availability to hold a hearing on the school district issue prior to the beginning of the 2015-2016 school year?
III. Did the [t]rial [c]ourt err and/or abuse its discretion in deciding the school district issue in a manner not consistent with its prior order?
IV. Did the [t]rial [c]ourt err and/or abuse its discretion in denying Mother's Emergency Petition to allow the telephone testimony of the mother of Father's youngest child, which would have questioned the credibility of Father's testimony, and which would have substantiated claims made by Mother?
V. Did the [t]rial [c]ourt err and/or abuse its discretion in refusing to follow its prior order allowing for the [i]n camera examination of Father's employment record, when said order was entered as a result of suspension allegations which Father denied?
VI. Did the [t]rial [c]ourt err and/or abuse its discretion in misapplying the facts to the statutory factors under 23 Pa.C.S. [§] 5328, resulting in numerous conclusions that are unreasonable under the circumstances as shown by the record?
VII. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably did not give any consideration to Father's history of not testifying truthfully at a prior proceeding?
VIII. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably did not give any consideration to the fact that Father was suspended from his employment yet again?
IX. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably found it would be detrimental to the [C]hild if time with Father was minimized but was silent on the detrimental implications of minimizing the [C]hild's time with Mother?
X. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably found that [F]ather is more capable than Mother of encouraging and permitting frequent and continuing contact between the Child and the other parent, which is not supported by the record?
XI. Did the [t]rial [c]ourt err and/or abuse its discretion by stating that the parents had shared physical custody of the child since birth, which is not supported by the record?
XII. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably found Mother intent upon restricting Father's role in the Child's life, is not supported by the record?
XIII. Did the [t]rial [c]ourt err and/or abuse its discretion in finding that Mother does not engage in afterschool activities, which is not supported by the record?
XIV. Did the [t]rial [c]ourt err and/or abuse its discretion in stating that Mother has had at least one paramour live in her residence, which is not supported by the record?
XV. Did the [t]rial [c]ourt err and/or abuse its discretion in magnifying Mother's relationships since the birth of the [C]hild, highlighting that Mother has two children with two different fathers and is suggesting that primary custody of the Child would interfere with Mother's social and romantic life, while minimizing Father's relationships including the birth of an additional child born after the separation of the parties?
XVI. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably found that Mother chooses to forgo travel time with the Child, which is not supported by the record?
XVII. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably found that certain patterns of Mother's behavior impedes the Child's relationship with Father and that Mother creates situations that frustrate Father, thereby justifying Father's volatile behavior, which is not supported by the record?
XVIII. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably minimized Father's behavior toward Mother when it characterized it as inappropriate, and suggested that Mother deliberately provokes Father, which is not supported by the record?
XIX. Did the [t]rial [c]ourt err and/or abuse its discretion in unreasonably interpreting testimony to suggest that Father attempts to work with Mother with regard to the Child, which is not supported by the record?
XX. Did the [t]rial [c]ourt err and/or abuse its discretion in unreasonably interpreting the testimony to suggest that Mother
wants primary physical custody of the Child because it would be more convenient for her, which is not supported by the record?Mother's Brief, at 23-31.
XXI. Did the [t]rial [c]ourt err and/or abuse its discretion when it ordered that Mother's custodial time would begin at 5:00 p.m., when it knew that would require Mother to wait somewhere for over an hour after work before being allowed to pick up the Child?
XXII. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably suggests that Mother desires that Father only see the Child once a month on a random schedule, which is not supported by the record?
XXIII. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably inferred that Mother kept her older child from his biological father, which is not supported by the record or biological father's testimony at the prior hearing?
XXIV. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably did not give consideration to the fact that [F]ather refused to continue with co-parent counseling as ordered and as supported by the record?
XXV. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably did not give adequate consideration to the extended family and friends of Child in close proximity to Mother's home?
XXVI. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably did not to give adequate consideration to the strong relationship that the Child shares with his sibling in Mother's home?
XXVII. Did the [t]rial [c]ourt err and/or abuse its discretion in that it unreasonably did not consider the adverse effect Father's uncontrolled anger toward Mother has on the Child, as well as the repeated unfounded reports to the police and the doctor?
XXVIII. Did the [t]rial [c]ourt err and/or abuse its discretion when it reached inconsistent conclusions, which are not supported by the record?
Issue selection is a key hallmark of appellate advocacy. Mother raises an astonishing number of issues—28. This shotgun approach reeks of careless, uninformed appellate advocacy. Justice Robert H. Jackson warned of the dangers of this approach many years ago:
Legal contentions, like the currency, depreciate through overissue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at a lack of confidence in any one. Of course, I have not forgotten the reluctance with which a lawyer abandons even the weakest point lest it prove alluring to the same kind of judge. But experience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.Ruggero J. Aldisert, J. "Winning on Appeal: Better Briefs and Oral Argument," at 129 (2d ed. 2003) (quoting Robert H. Jackson, "Advocacy Before the United States Supreme Court," 37 Cornell L.Q. 1, 5 (1951)). This "much quoted" advice, unfortunately, "often 'rings hollow'...." Commonwealth v. Robinson , 864 A.2d 460, 480 n.28 (Pa. 2004) (citing Ruggero J. Aldisert, J. "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)). But its importance cannot be overstated. See , e.g., Jones v. Barnes , 463 U.S. 745, 751-752 (1983) ("Experienced advocates since time beyond memory emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues"); Howard v. Gramley , 225 F.3d 784, 791 (7th Cir. 2000) ("[O]ne of the most important parts of appellate advocacy is the selection of the proper claims to urge on appeal. Throwing in every conceivable point is distracting to appellate judges, consumes space that should be devoted to developing the arguments with some promise, inevitably clutters the brief with issues that have no chance ... and is overall bad appellate advocacy."); Aldisert, supra at 129 ("When I read an appellant's brief that contains more than six points, a presumption arises that there is no merit to any of them.")
Mother's raising of such a staggering number of issues causes her another problem. The Rules of Appellate Procedure limit a principal brief to 14,000 words, unless the brief does not exceed 30 pages. See Pa.R.A.P. 2135(a)(1). Where the brief exceeds 30 pages, a certificate of compliance with the 14,000 word-count limit must be filed. See id.
Here, the substantive portion of Mother's brief spans 54 pages and it fails to include a certificate of compliance. Rule 2101 underscores the seriousness with which this Court takes deviations from procedural rules, as it permits us to quash or dismiss an appeal for procedural noncompliance. Because Mother's violation of the Rules of Appellate Procedure does not hamper our ability to dispose of the matters on appeal, we do not quash or dismiss the appeal. However, we conclude that all content of Mother's brief beyond page 53, which correlates to the first 30 pages of the substantive portion of her brief, is waived for failure to abide by the Rules.
We recognize that all but Mother's first nine issues, therefore, are waived. Even if the issues were not waived for failure to abide by the Rules of Appellate Procedure, we would conclude, based upon thorough review of the certified record before this Court, and in light of the foregoing applicable law, that the court did not commit an error of law or abuse its discretion in fashioning the custody order.
With these admonitions in mind, we proceed to the merits. Perhaps not surprisingly, none of Mother's first nine issues has merit.
Our scope and standard of review in custody matters 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) (emphasis added).
Further, 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) (quoting Jackson v. Beck , 858 A.2d 1250, 1254 (Pa. Super. 2004)).
Pursuant to the Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340, in considering modification of an existing custody order, "a court may modify a custody order to serve the best interest of the child." 23 Pa.C.S.A. § 5338(a). "The best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well[-]being." Saintz v. Rinker , 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). Section 5328(a) provides the following enumerated list of factors a trial court must consider.
§ 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).
23 Pa.C.S.A. § 5328(a); see also J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (stating that trial courts are required to consider "[a]ll of the factors listed in section 5328(a) . . . when entering a custody order").(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 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.
We have explained:
Section 5323(d) provides that a trial court "shall delineate the reasons for its decision on the record in open court or in a written opinion or order." 23 Pa.C.S.A. § 5323(d). Additionally, "section 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen [Section 5328 custody] factors prior to the deadline by which a litigant must file a notice of appeal." C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013). . . .A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
Instantly, the trial court considered all of the Section 5328(a) custody factors and delineated the reasons for its decision in its opinion that accompanied the subject order. See Trial Court Opinion, 3/3/16, at 2-14. The trial court found Section 5328(a)(1), (4), (8), (9), and (10) in favor of Father, and it found the remaining factors equal between the parties or not applicable in this case. With respect to Section 5328(a)(16), any other relevant factor, the court explained its rationale, in part, as follows.
Father (and the home/community setting Father offers) provide the Child with a nominally more supportive environment than does Mother in her home/community setting, and, further, given both parents' employment in [the School District of Lancaster], the opportunity for both parents to have frequent contact with the Child during his waking hours is enhanced if primary physical custody of the Child is awarded to Father during the school year. Similarly, given both parents['] occupations, the Child should have the benefit of optimizing his time with each parent during the school summer vacation, when a week-to-week shared
physical custody schedule is feasible and is likely to benefit to the Child's relationships not just with both parents but with other family members.Id. at 14.
In her first issue on appeal, Mother asserts that the trial court erred in failing to commence the custody trial within 90 days of the date that the scheduling order was entered pursuant to Pennsylvania Rule of Civil Procedure 1915.4(c). Mother requests that this Court reverse the custody order on this basis. The issue involves a pure question of law. Therefore, our standard of review is de novo, and our scope of review is plenary. See Harrell v. Pecynski , 11 A.3d 1000, 1003 (Pa. Super. 2011) (citations omitted).
Rule 1915.4(c) provides:
Rule 1915.4. Prompt Disposition of Custody CasesPa.R.C.P. 1915.4(c).
. . .
(c) Trial. Trials before a judge shall commence within 90 days of the date the scheduling order is entered. Trials and hearings shall be scheduled to be heard on consecutive days whenever possible but, if not on consecutive days, then the trial or hearing shall be concluded not later than 45 days from commencement.
. . .
Instantly, the record reveals that, by order entered on June 8, 2015, the trial court scheduled the custody hearing for September 1, 2015, at 10:00 a.m., which was within the requisite 90-day period. Thereafter, following a pretrial conference on August 19, 2015, by order dated August 21, 2015, and entered on August 24, 2015, the trial court provided, in pertinent part, as follows:
The significance of this case being scheduled for a 10:00 a.m. starting time was discussed. As of the date of this Order, the [c]ourt has not received word that the 9:00 a.m. hearing has settled. The [c]ourt and counsel agreed that unless the 9:00 a.m. case resolved by August 21, 2015, the hearing in this case will be rescheduled.Order, 8/24/15, at ¶ 2. By order entered on September 2, 2015, the trial court re-scheduled the hearing for January 8, 2016, as a result of the unrelated case proceeding as scheduled at 9:00 a.m. on September 1, 2015. Thus, the custody hearing commenced approximately 128 days after the September 2, 2015 scheduling order.
However, Mother fails to provide any statutory or case authority to support her argument that a custody order shall be reversed on the basis of the trial not commencing within 90 days of the entry of the scheduling order, and nor are we aware of any. As such, we conclude that Mother's issue is without merit. Mother's first issue fails.
In her second issue, Mother argues that the trial court erred and/or abused its discretion in denying her "request to bypass the custody conciliation conference and to refer this case directly for a trial." Mother's Brief, at 43. Mother baldly asserts that Pa.R.C.P. 1915.4-1 (Alternative Hearing Procedures for Partial Custody Actions) and Pa.R.C.P. 1915.4-3 (Non-Record Proceedings. Trial) do not make custody conciliation conferences mandatory. She complains that the court "caused inexcusable delay to this case by making the parties appear at a custody conciliation conference at which there was no hope of settlement. . . ." Id. at 44.
Mother states in her brief that, on April 15, 2015, she "made her request to bypass the custody conference when she presented her Petition for Modification at Family Business Court, the local motions court in the Court of Common Pleas of Lancaster County. . . ." Id. at 43. The record reveals that by order the same date, on April 15, 2015, the trial court denied Mother's request and scheduled a custody conciliation conference for May 28, 2015.
The Rules referenced by Mother, along with Rule 1915.4-2, allow courts to adopt alternative hearing procedures in partial custody actions involving an office conference conducted by a conference officer. See Pa.R.C.P. 1915.4-1, 1915.4-2, 1915.4-3. The trial court properly observed, however, that Mother cites "no statute, rule of law[,] or local rule of procedure to support" her argument that it erred in not granting her request to proceed directly to a hearing in this case, and nor are we aware of any. As such, we conclude that Mother has waived this issue. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that issues are waived if appellate brief fails to provide meaningful discussion with citation to relevant authority); Pa.R.A.P. 2119(b).
In her third issue, Mother argues that the court erred and/or abused its discretion in deciding the parties' school district dispute in a manner not consistent with its prior order. Specifically, Mother asserts that the prior agreed-upon order, dated May 14, 2014, directed that Child
would attend kindergarten at the School District of Lancaster, but that the issue could be brought up in the future without prejudice. The modification petition was filed on April 15, 2015, in time to address the 2015-2016 school year, however [it was] not heard until [Child] was halfway through [his] first grade year. The trial court's finding[s] were anything but non-prejudicial regarding the school district issue.Mother's Brief, at 45.
The May 14, 2014 custody order incorporated the parties' stipulation as follows, in part:
The Child shall be enrolled at, and attend, Buchanan Elementary for the 2014-2015 school year. The agreement for the [C]hild to attend Buchanan Elementary for the 2014-2015 school year shall be without prejudice to either party raising the ongoing school arrangement that will be in the Child's best interests for subsequent school years.Order, 5/14/14, at ¶ 1.
We discern no prejudice by the trial court. Upon review, the court carefully and thoroughly considered the parties' requests regarding the school district issue. Further, there is no evidence in the certified record that the court unnecessarily delayed the matter. We conclude that Mother's argument is without merit. Mother's third issue fails.
In her fourth issue, Mother argues that the trial court erred and/or abused its discretion in not permitting the testimony via telephone of the mother of Father's younger child. Specifically, Mother asserts that, "[t]he witness was central towards rebutting the self-serving testimony of Father regarding his parenting abilities, and central to determining the credibility of Father as well." Mother's Brief, at 46.
Father testified that, in July 2015, he learned that he has a four-year-old daughter who resides in Iowa, whom he has never met. See N.T., 1/8/16, 244-245.
The record reveals that Mother filed a petition for special relief on January 6, 2016, wherein she requested the testimony via telephone of L.C., whom she alleged is the mother of Father's daughter and lives in Iowa. In the petition, Mother asserted that the witness "will substantiate some of the claims that have been made by Mother, and is necessary." Petition, 1/6/16, at ¶ 6. The court denied the petition by order dated January 7, 2016.
When we review a trial court ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party.Phillips v. Lock , 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).
An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.
Mother argues that, "[i]t is patently unfair and unreasonable that this witness, who knows Father intimately and resides in Iowa, was not permitted to testify at all. In contrast, one of [F]ather's witnesses, [A.C.], a resident of Father's neighborhood in Lancaster, Pennsylvania, was permitted by the court to testify by telephone." Mother's Brief, at 47. We disagree.
Contrary to Mother's assertion, there is no record evidence that the witness possessed any relevant knowledge in this case. Indeed, the record demonstrates that the witness lives in Iowa; the female child born from the relationship between her and Father is four years old; and Father learned of his daughter's existence approximately six months before the subject proceedings and had yet to meet her. Upon careful review of the testimonial evidence, we discern no abuse of discretion by the trial court in this evidentiary ruling.
Even if the court abused its discretion, we would conclude that it does not constitute reversible error as Mother fails to assert how she was harmed or prejudiced by the ruling. Mother's fourth issue fails.
In her fifth issue, Mother argues that the trial court erred and/or abused its discretion in failing to examine in camera Father's employment records. We disagree.
The trial court found that, "[d]uring 2014/2015 academic year, Father was on leave with pay due to his suffering a concussion after a fall at work and to due to an accusation by a student of inappropriate behavior. Father's physical condition healed and the accusation was resolved in Father's favor, and he returned to work full time for the 2015/2016 academic year." Trial Court Opinion, 4/15/16, at 10, ¶ 50 (footnote omitted).
By order dated August 21, 2015, the court provided:
8. Counsel for Mother has subpoenaed Father's employment records. Counsel for Father considers these records to be irrelevant. The court will examine Father's employment records in camera with counsel present to ascertain relevancy as to proof of facts pertaining to parenting in the Child's best interests and/or, potentially, for impeachment purposes. The content of such records shall be maintained in confidence except to the extent necessary for disclosure in the context of this litigation. . . . .Order, 8/21/15, at 2, ¶ 8. The court explained, however, that it did not review the records in camera because "the School District of Lancaster filed a motion to quash the subpoena and the records were not produced. The motion was not disposed of, but Mother did not move to enforce the subpoena." Trial Court Opinion, 4/15/16, at 10, n. 4.
Mother disagrees that a motion to quash was filed in this case. Nevertheless, she fails to assert in her brief that she obtained the records and provided them to the trial court for review. Therefore, we conclude that Mother's argument is without merit. Mother's fifth issue fails.
In her sixth issue, Mother argues that the court abused its discretion in its consideration of the Section 5328(a) custody factors, supra. Specifically, she states, "[f]or example, the factors involving extended families and the child's sibling relationships clearly and importantly favor Mother. Yet, the trial court seems to have difficulty in merely stating that." Mother's Brief, at 50.
With respect to Section 5328(a)(5), the availability of extended family, the trial court found that, "[b]oth sets of [maternal and paternal] grandparents are substantially involved with the Child's life." Trial Court Opinion, 3/3/16, at 5. The court further found that, "Mother has several members of her extended family (in addition to her parents) who reside in the community and who are involved in the Child's life." Id. The court specifically noted Child's great uncle and aunt. With respect to Section 5328(a)(6), the child's sibling relationships, the court found, in part, that Child "has a half-sibling in Mother's household, a brother who was approximately twelve years of age. . . ." Id. at 6.
Upon careful review, we discern no abuse of discretion by the court in the weight it placed upon Section 5328(a)(5) and (6). As mentioned above, the court placed greater weight upon Section 5328(a)(1), (4), (8), (9), and (10), which it found in favor of Father. In addition, the court weighed under Section 5328(a)(16) the fact that both parents are employed by the School District of Lancaster. Therefore, the court concluded, "the opportunity for both parents to have frequent contact with the Child during his waking hours is enhanced if primary physical custody of the Child is awarded to Father during the school year. . . ." Trial Court Opinion, 3/3/16, at 14. Because the court carefully and thoroughly considered all of the Section 5328(a) factors in its opinion accompanying the subject order, and further explained its rationale for the custody order in its Rule 1925(a) opinion, we adopt the court's March 3, 2016 and April 15, 2016 opinions as our own. Mother's sixth issue fails.
The parties are directed to attach a copy of these opinions in the event of further proceedings in this matter.
In her seventh issue, Mother argues the court erred and/or abused its discretion in failing to "give any consideration to Father's history of not testifying truthfully at a prior proceeding." Mother's Brief, at 51. Specifically, Mother asserts:
The trial court has used its faulty memory to base this decision on prior testimony when it serves Father. Yet, it does not remember the testimony of the father of Mother's older son who testified at a prior hearing that Mother is a great mom. The trial court forgets that Father lied about his first suspension from his position as a school principal at a prior hearing, and the trial court forgets the testimony it heard at a recent support hearing involving Father when the mother of Father's youngest child testified by telephone.Id.
Mother alleges evidence that is not a part of the certified record before this Court. "For purposes of appellate review, what is not of record does not exist." Hrinkevich v. Hrinkevich , 676 A.2d 237, 240 (Pa. Super. 1996) (citation omitted). Therefore, we have no basis upon which to analyze her claim. We conclude that Mother's seventh issue is without merit.
In her eighth issue, Mother argues that the court abused its discretion in failing to "give any consideration to the fact that Father was suspended from his employment." Mother's Brief, at 52. The crux of Mother's argument is that the court failed to weigh against Father his paid leave during the 2014-2015 school year due, in part, "to an allegation of inappropriate behavior by a student." Id. We reject Mother's claim. Based on the court's finding, stated above, that Father was on paid leave due to suffering a concussion, as well as an accusation by a student of inappropriate behavior, both of which were resolved in his favor, we discern no abuse of discretion by the court in the weight it placed upon this evidence in fashioning the subject order. Mother's eighth issue fails.
Finally, in her ninth issue, Mother argues that the court erred and/or abused its discretion in "finding that awarding primary physical custody to Mother would restrict Father's contact with the child. However, the trial court goes on to award primary physical custody to Father without any analysis or consideration of how that award would minimize the child's time with Mother." Mother's Brief, at 53. Mother's claim is without merit.
In its opinion accompanying the subject order, the court stated, in part:
Mother seeks primary physical custody of the Child not only during both the school year but also during the school summer vacation. She provided no credible rationale for limiting Father's exposure to the Child your round. This arrangement would have a severe impact upon the Child's time and, by extension, his relationship with Father.Trial Court Opinion, 3/3/16, at 12. Further, the court emphasized in its Rule 1925(a) opinion:
It is highly significant that Mother believes that during the extended time period when all three members of this triangular relationship - Mother, Father, and Child - are free of their full-time "occupations", i.e., during the school summer vacation, Mother should nonetheless have primary physical custody of the Child, with Father's time with the Child being confined to a limited schedule plus two weeks of vacation. By contrast, Father supported an alternating week fully shared schedule of physical custody of the Child during the summer.Trial Court Opinion, 4/15/16, at 19. We deem the foregoing conclusions reasonable in light of the court's sustainable findings of fact. As such, discern no abuse of discretion in this regard. Mother's ninth issue fails.
Upon review, we conclude that the trial court carefully and thoroughly considered Child's best interests in fashioning its custody award, and the record supports the court's decision. Accordingly, we affirm the order.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/18/2016
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