Opinion
J-A22020-17 J-A22021-17 No. 581 EDA 2017 No. 977 EDA 2017
10-20-2017
G.N.I. Appellant v. C.S. Appellee G.N.I. Appellee v. C.S. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 23, 2017
In the Court of Common Pleas of Bucks County
Domestic Relations at No(s): A06-07-62331-C-26 Appeal from the Order Entered February 22, 2017
In the Court of Common Pleas of Bucks County
Domestic Relations at No(s): A06-07-62331-C-26 BEFORE: BOWES, J., LAZARUS, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
C.S. ("Mother") and G.N.I. ("Father"), both pro se, cross appeal from the February 22, 2017 order, entered in the Court of Common Pleas of Bucks County, denying Father's petition to modify custody and his petition for contempt, ordering the parties to share legal custody of their minor son and minor daughter ("Children"), ages 12 and 14, granting Mother primary physical custody, and granting Father partial physical custody. After our review, we affirm.
We note some confusion as to the date the order was entered in this case. The trial court, in its opinion filed April 4, 2017, erroneously finds that Mother's appeal was untimely filed on March 20, 2017. Trial Court Opinion, 4/4/17, at 1. The purported order of January 23, 2017, however, was not entered on the trial court docket until February 22, 2017. See Pa.R.A.P. 301(a) ("[N]o order of a court shall be appealable until it has been entered upon the appropriate docket in the lower court."); see also Pa.R.C.P. 236. Mother's March 20, 2107 appeal, therefore, was timely filed from the February 22, 2017 order. Father's appeal, filed on February 8, 2017, which was taken prior to entry of the order on the docket and Rule 236 notice, was premature. This, however, is not fatal to his appeal. See Pa.R.A.P. 905(a)(5) ("A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof."). Thus, Father's notice of appeal is treated as filed on February 22, 2017.
We have consolidated Mother's and Father's appeals pursuant to Pa.R.A.P. 513.
This litigation has persisted for over ten years. The parties separated on July 31, 2007; the court entered an initial interim custody order, by agreement, on October 18, 2007. Since then, the parties have inundated the court with over 200 custody docket entries, unwilling to see beyond themselves to grasp the effect this bitterness has on their children. In his July 20, 2015 opinion, following two days of testimony on one of Father's petitions for contempt, the Honorable Alan M. Rubenstein stated: "[The parties] are so full of venom for each other that they forget there's two children here who can't speak for themselves." See Trial Court Opinion, 7/20/15, at 4. Unfortunately for Children, the parties continue to ignore the advice and admonitions of the Parent Coordinator, whom they hired, and the three trial court judges who have agonized through this litigation. As Judge Rubenstein stated, the parties are unable to stop focusing on their dislike for one another and instead focus on their children, see Trial Court's Statement on the Record, 1/10/17, at 5-6, and as he predicted, Mother and Father have filed appeals from the February 22, 2017 order.
See Trial Court's Statement on the Record, 1/10/17, at 10.
The level of conflict has not abated. In his Statement on the Record, Judge Rubenstein characterized this "pitched battle" as a "war without end." Id. at 68. It is difficult for this Court to fathom how parents can continue behavior that is so destructive and contrary to their children's best interests, bordering on emotional abuse. They are so blinded by hostility toward each other that they are willing to sacrifice their children's well-being.
The order provides, in relevant part:
Father is to have partial physical custody Thursday after school until Monday morning and Thursday at 4:00 p.m. until Friday morning on alternative weeks. During the summer, the custody schedule will be modified to week-to-week. Mother shall be required to transport the children for all pick-ups and drop-offs, and to deliver the children to Father for his periods of partial custody.Order, 2/22/17.
Mother raises the following claims (verbatim):
1. Did the trial court commit an abuse of discretion or error of law when its decision did not match the evidence, most recent custody evaluation done, Father's recent selected abandonment of Children, and failed to consider the factors of custody based on facts including the need to protect the best interests of the Children and the Children's well-reasoned preference to spend more time with Mother than they currently had?
2. Did the trial court commit an abuse of discretion or error of law based on the judge's bias toward Mother and create an unfair courtroom, including confusing testimony in the verdict and citing things incorrectly versus what the record and evidence showed, as well as whereby [sic] the factors of custody were not fairly applied based on evidence due to the same bias?
Mother's Appellant's Brief, at 4-5.a. Did the trial court commit an abuse of discretion or error of law by ignoring Mother's petitions and concerns shared that Father and Stepmother committed perjury on several instances with no recourse including violating rules of truth in courtroom [sic] and while under oath, and in documents submitted vs. the fabricated one Mother pointed out to the court, Father's petitions submitted with blatant lies whereby Mother's reply petitions showed source documents from third parties to show the facts; additionally Mother's concern with Father and Stepmother knowingly gathering a copy of their sealed custody evaluation all in an attempt to divert this case from the truth?
Father raises the following issues:
Father's issues in his Statement of Questions Involved in his appellate brief differ slightly from those raised in his Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. See Father's Appellant Brief, at 4-5; Rule 1925(b) Statement, 2/8/17. We have taken his issues on appeal from his Rule 1925(b) Statement, See Pa.R.A.P. 1925(b)(4)(vii). --------
1. Should this Court vacate the lower court's final custody order because it was based on unreasonable conclusions relative to [Children's] need for stability, and therefore does not further the best interests of [Children] because:
a. The court's most important conclusion relative to Children of sound judgment to provide a well-reasoned preference was not supported by the evidence and was thus not a sustainable finding (children contemplating suicide and expelled from two daycares with continual behavioral problems);
b. The court's order was unreasonable because it failed to address the fact that [C]hildren are deprived of Father's care for extended periods during the school week due to Mother's created impediment with respect to proximity between homes, and which is particularly problematic in light of the court's simultaneous conclusion that Mother discourages [C]hildren's relationship with their Father and instigates turmoil?
2. The trial court abused its discretion and/or committed an error of law by violating the Fourteenth Amendment (Amendment XIV) of the Constitution of the United States in denying a pro-se party from obtaining a copy of the custody evaluation report in upholding a discriminatory policy that only allows lawyers to obtain copies.Father's Rule 1925(b) Statement of Errors Complained of on Appeal, 2/8/17.
3. The trial court abused its discretion and/or committed an error of law in failing to recognize Father's Petition for Special Relief filed on August 10, 2016, which was added to the docket and scheduled for trial on September 23, 2016 at the same time as the custody modification, and which evidence contained within contradicts the findings in the lower court's opinion.
4. The trial court abused its discretion and/or committed an error of law by not adhering to the Rules of Civil Procedure in not promptly disposing of the custody matter.
In reviewing a custody order, our scope and standard of review are well established.
[O]ur 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.Collins v. Collins , 897 A.2d 466, 471 (Pa. Super. 2006) (internal citations and quotation marks omitted).
The paramount concern in any child custody case is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. "This 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." J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (citation omitted). "A party seeking modification of custody arrangements has the burden to show that modification is in the child's best interest." Ketterer v. Seifert , 902 A.2d 533, 539 (Pa. Super. 2006). Additionally, this Court has observed that
the 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.Id. at 540.
The factors to be considered by the court when awarding custody are set forth in 23 Pa.C.S.A. § 5328(a). Section 5328(a) provides:
§ 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) Consideration of child abuse and involvement with child protective services.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity and judgment.
(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.
23 Pa.C.S.A. § 5328(a).
Mother argues that although the court properly determined that she should remain the primary caretaker, the court abused its discretion in ignoring evidence that would support "more time with Mother[.]" See Mother's Brief, at 19-20. Mother suggests "adjusting [her] primary custody from the 5 overnights Father has every 2 weeks, and the alternating weeks in the summer." Id. at 20. We find no support for this argument, and we find no abuse of discretion in the court's conclusion that there were no compelling reasons to alter the custody order.
We have reviewed the custody hearings from April 16, 2015 to December 27, 2016, the January 10, 2017 Statement on the Record, wherein the court reviewed all of the evidence received, and, finally, the court's painstaking analysis of the statutory custody factors in both its January 10, 2017 Statement on the Record and its May 31, 2017 Rule 1925(a) opinion. Contrary to Mother's claim, the court considered all the evidence, including minor daughter's preference and her maturity in expressing that preference and Father's "abandonment." The court stated:
[Minor daughter] tells me she likes school. She does rather well. She's involved in a jazz dance club. She's a cross-country runner. She has great grades in math and science. All these things bode well for her remaining with [Mother]. She is a straight-A, high honor roll student. And after we go through the background of this child, she states, without any prompting, she looked right at me - and I wrote it down - she said, "I've been living through this for nine-and-a-half years." . . . Her preference is strong to be with her mother for all the reasons she mentioned. All the reasons we accept. She's an incredibly bright, articulate child, not just academically, but poised, and her preference is well-reasoned and grounded in reality.Trial Court's Statement on the Record, 1/10/17, at 54-55, 58. The court also considered what Mother described as "Father's abandonment," when he only saw Children once in a two-month period in 2014 and his failure to tell Mother the address of his new home. The trial court considered the events leading up to this. Mother, however, would have the trial court, and this Court, ignore the evidence presented by Father as well as the tortured history of this case.
Mother was continually late for her drop-offs at Father's home, and, ironically, it was Mother who would call the State Police when she was late for drop-off at Father's home, and police would escort Children from her car to Father. Mother contacted Children and Youth Services several times, alleging child abuse, once when Father took minor son to the emergency room for an allergic reaction to ibuprofen. The court characterized Mother's actions as a "studied attempt to make Father's life miserable." Id. at 12.
I also heard that Father - and rightfully so- was very upset, as he should be, that Children & Youth had contacted him on numerous occasions. . . . Children & Youth are a last resort. They deal with horrific acts; sexual abuse, physical abuse, neglect. . . . Father legitimately mentions that [minor son] had an allergic reaction to generic ibuprofen . . . [s]o he took the child to the hospital emergency room. As a parent one would be concerned if a child had a reaction to any medicine, prescribed or over-the-counter. Mother called the police and alleged there was abuse by Father.Id. at 22-24.
* * * *
Later, Father moves, but he doesn't tell Mother he moves. . . . What's Father's reason? He didn't want the police to come to his new home. April of 2014; Father didn't see [Children]. In May, he didn't see them until Memorial Day. You get into June. He only saw them on Father's Day. Father was spooked. I don't blame him. He said he didn't want Children & Youth or the police involved. . . . Mother admitted that four years ago she called Children & Youth. She alleged abuse by Father, which never happened. Father makes a mistake. I understand his anger.
In reaching its custody decision, the court considered the fact that Mother exposed Children to the police and Children and Youth, used bad judgment, and instigated turmoil. Despite this, the court found that Mother "is, apparently, capable of taking care of the children." Id. at 46. The court also considered the fact that Father made his share of mistakes and contributed, wholeheartedly, to the continual discord between the parties. Id. at 46-47. Mother's argument goes on to recite the evidence presented to the court that she believes supports an order that is in Children's best interests, in other words, provides less time with Father.
Father responds that Children "are not doing well under [Mother's] primary care," as illustrated by their behavioral and emotional issues, and, therefore, the court's order maintaining the current custody schedule is not supported by the record. Father's Brief, at 21-22. There was considerable testimony regarding minor son's behavioral issues, minor daughter's recent "contemplation of suicide," and mental health counseling for Children. We are not convinced, however, that altering the custody order would alleviate Children's emotional issues; we agree with the trial court's assessment that Children's behavioral and emotional issues are more a consequence of their parents' dysfunction than the custody schedule.
Next, Mother argues that the court exhibited bias against her and that as a result of that bias, it did not fairly apply the statutory factors. These claims are meritless. Notably, the court was equally critical of the parties' behavior. Further, as we stated above, the court properly applied the statutory custody factors, both from the bench and in its opinion. Mother essentially seeks a reweighing of the evidence in order to a reach an even more favorable order. Father, in his cross appeal, seeks the same thing. Since the parties are unwilling to work out a custody schedule on their own, they are subject to the court's determination of what is in their children's best interests. We must defer to the trial court on issues of credibility and weight of the evidence, and our review of the certified record confirms the court's conclusions drawn from its consideration of the statutory best-interest factors. We see no reason to disturb the court's custody decision based upon either party's assessment of the evidence. Ketterer , supra. We find no error or abuse of discretion. Collins , supra ; J.R.M., supra.
With respect to Father's cross-appeal, we rely upon Judge Rubenstein's opinion to dispose of his claims. Judge Rubenstein had the opportunity to observe the proceedings, over several years, and to make determinations concerning the credibility and demeanor of the witnesses, including the minor daughter, who Mother called as a witness. We defer to his findings. Further, Judge Rubenstein performed a careful and detailed analysis of the Children's best interests, and the evidence presented at trial supports the trial court's determination that their best interests are served by maintaining the current custody schedule. See Trial Court Opinion, 3/22/17, at 15-21. Accordingly, we affirm the February 22, 2017 order based upon Judge Rubenstein's opinion, and we direct the parties to attach a copy of that opinion in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/20/2017
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