Opinion
J-A19045-15 No. 454 WDA 2015 No. 462 WDA 2015
10-19-2015
K.T., Appellant v. H.T., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered February 27, 2015, in the Court of Common Pleas of Lawrence County, Civil Division, at No. 11297/06 CA BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
In these consolidated appeals, K.T. ("Father") appeals from the Order entered on February 27, 2015 (hereinafter "Custody Order") which (1) denied the competing Petitions for modification of the existing child custody Order entered on October 3, 2013 ("the prior custody Order"), filed by Father and H.T. ("Mother"), regarding their minor child, C.T. ("Child" or "C.") (born in February 2001); and (2) granted Mother special relief relating to enforcement of the prior custody Order. The Custody Order continued to award Mother sole legal, and primary physical, custody of Child, and granted Father partial physical custody. The Order also included an enforcement provision requiring law enforcement officials and child protective services agents/employees to return Child to Mother, rather than Father or anyone acting on behalf of Father, if Child removed himself from Mother's physical custody (discussed in detail below). Father also appeals from a separate Order entered on February 27, 2015, which granted Mother's Petition for contempt concerning Father's violation of the prior custody Order (hereinafter "Contempt Order"). We affirm the Custody Order, and quash the appeal from the Contempt Order as interlocutory.
The factual and procedural background of this matter is exhaustively set forth in the trial court's 91-page Pa.R.A.P. 1925(a) Opinion, which we adopt and incorporate herein by reference. See Trial Court Opinion, 2/27/15, at 1-62. In the interest of conciseness and readability, we will briefly set forth the relevant facts and procedural history herein.
The trial court summarized the background of this case, and the parties' positions, as follows:
The issues in this case revolve around the fact that [Child] refuses to be in the custody of Mother and[,] in fact[,] has not been in the physical custody of Mother since December [] 2013, despite the terms of the [prior] custody [O]rder. Mother claims that this circumstance [exists] because of the contemptuous conduct of Father[,] who has engaged in a pattern of parental alienation, turning [Child] against Mother[. W]hereas[] Father
contends that this circumstance is brought about by the manner in which Mother treats [Child], causing him to be in fear of her[,] and [Mother's] refusing to engage in any meaningful effort to keep [Child] in her custody.Id. at 2.
The parties have engaged in contentious and continuous litigation since their separation in 2004, when Child was only three years-old. Before the entry of the prior custody Order, the parties shared physical and legal custody of Child, pursuant to a consent custody Order executed in March 2011. In the prior custody Order, entered on October 3, 2013, the trial court awarded sole legal and primary physical custody of Child to Mother, who is a dietician, and resides in Neshannock Township, Lawrence County, Pennsylvania. The prior custody Order also denied Father's Petition to relocate Child from Lawrence County to Westmoreland County. Father is a physician, employed as a professor at the Lake Erie College of Osteopathic Medicine. Father moved to Westmoreland County in July 2013, and presently resides there. Father's long-time paramour, M.E.S., has a residence in Neshannock Township, Lawrence County, located nearby Mother's residence, which we will hereinafter refer to as the "Fireside residence" or "Fireside."
Father appealed the prior custody Order. This Court affirmed, after which the Supreme Court of Pennsylvania denied allowance of appeal. K.T. v. H.T., 104 A.3d 67 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 95 A.3d 278 (Pa. 2014).
Before the entry of the prior custody Order, the parties had lived in close proximity to one another in Neshannock Township, Lawrence County, and within the same school district.
Fireside is located approximately two-tenths of a mile from Mother's residence.
Despite the dictates of the prior custody Order providing Mother with primary physical custody, Child began to refuse to stay at Mother's residence, approximately one month after the entry of that Order. Trial Court Opinion, 2/27/15, at 7. Specifically, the trial court explained that
[Child] and Father began a procedure whereby Father drops [Child] off at Mother's house[. A]t the custody exchange time, [Child] will either knock on Mother's door and tell her that he is not staying or simply walk through the backyards, and in either case, proceed directly to the [Fireside residence] of ... [M.E.S.] Father will then email Mother[,] telling her that [Child] is at Fireside.Id.
In its Opinion, the trial court detailed several incidents involving Child's refusal to stay with Mother during her scheduled custodial periods. The first of those incidents occurred on November 7, 2013, when Child left Mother's home, wearing only pajamas, at approximately 9:00 p.m., after which time Mother called 911 and went to the police station. Id. at 8. At the police station, Mother learned that M.E.S. had already picked up Child. Id. Child did not return to Mother's home. Id.
On December 16, 2013, Mother held a birthday party at her home, after which Child spent the night at Mother's home. Id. The following morning, Mother transported Child to school. Id. Child told her that he would return to her home after school, but he did not do so. Id.
Mother next saw Child on January 1, 2014, when Father dropped him off at Mother's residence at 8:00 p.m., whereupon Child immediately ran away. Id. Mother and the maternal grandmother followed Child in Mother's car, and eventually caught up with him. Id. Child entered the back seat of the car, but, as the car pulled into Mother's driveway, Child jumped out and began running away. Id. Mother and the maternal grandmother followed Child again. Id. Child ran to the Fireside residence, and went inside. Id. at 8-9. Child thereafter came back out and got into the car with Mother and the maternal grandmother, and they drove away, with the intention of heading to the home of a female friend of Mother. Id. at 9. The trial court explained what ensued as follows:
At an intersection, Mother could hear [Child's] seatbelt unclick. Fearing that [Child] was going to jump out of the car again, Mother directed the maternal grandmother to proceed. Mother turned around to grab [Child's] leg. [Child] opened the door and jumped out of the car. Mother's finger got stuck in the seam of his pants and ripped the bottom of his pants as he took off running. Mother called 911 and tried to find [Child]. At the direction of the police, Mother returned to her residence and waited. The police eventually notified Mother that [Child] was with Father.
This incident resulted in the filing of a [P]etition for protection from abuse ["PFA Petition"] by Father[,] on behalf of [Child,] against Mother in the Westmoreland County Court of Common Pleas. After hearings before the Honorable Megan Bilik-DeFazio, Judge Bilik-DeFazio ... dismissed the [PFA Petition]. Father filed a [P]etition for reconsideration[,] ...
[which] was denied.[FN 1]Id. (footnotes in original).
Father appealed the PFA denial to the Superior Court, which affirmed the decision of the trial court.[FN 2]
[FN 1] In denying reconsideration, Judge Bilik-DeFazio referred to the case as one of the most tragic custody cases she had ever seen and one of the most tragic cases of parental alienation. The judge found [Child] to be very deliberate, that he knows what he is doing and that he is manipulating.
[FN 2] In the court's Pa.R.A.P. 1925(a) Opinion, the court found that Mother's testimony was credible, that Mother had never threatened [Child], that Mother's explanation of what occurred on January 1, 2014 was reasonable[,] and that the testimony of [Child] that Mother had threatened to kill him[,] and that he was "fearful" of Mother, was not credible. In finding that [Child] lacked credibility regarding his assertions that [] [M]other has threatened him and physically abused him, the court noted that [] [C]hild's testimony was deliberate and calculated; that he did not show emotion under the circumstances[;] and that[,] by his conduct and demeanor, [Child] was operating under a clear agenda to manipulate the [prior] custody [O]rder. The court also commented on a cell phone video which shows that [Child] is giving [] [M]other a hard time, [and] that he is talking back to [] [M]other and being difficult and unreasonable, but that Mother exercised a great deal of patience in dealing with [Child] and his unacceptable behavior in that situation.
The trial court additionally stated as follows:
[Child] has not been with [] [M]other since the incident of January 1, 2014. In the spring of 2014, Mother attended [Child's] band concert at Neshannock School and observed the concert, but [Child] would not spend any time with her at that event. Meanwhile, during this entire period of time, Father and [Child] continued the procedure whereby Father will drop [Child] off at Mother's residence but [Child] will not stay[,] and will proceed to the Fireside residence, where Father will pick up [] [C]hild. [Child] will videotape these events. He himself testified that he videotapes his interaction with [] [M]other for use of the videos in court.
In connection with the proceedings before the Westmoreland County Court of Common Pleas on the PFA Petition that Father brought on behalf of [Child], Father arrived at the Westmoreland County Courthouse on January 3, 2014. In passing through security, Father was asked if he had any weapons. Father denied having any weapons. Security discovered in his briefcase a loaded Glock 9mm firearm and a folding knife with a three and three-fourth[-]inch blade in Father's briefcase. Father was arrested and charged with Possession of a Firearm and Other Dangerous Weapon in a Court Facility pursuant to 18 Pa.C.S.A. § 913(a)(1). The disposition of the charge was that Father entered the Accelerated Rehabilitative Disposition Program for a period of six months. Father testified that he had forgotten that he had the items in his briefcase and that he generally carried a loaded firearm, [which] he had obtained from a friend who was in the scrap recycling business, for his own protection[,] as he was afraid that Mother would harm him[,] and that generally[,] he carried the loaded firearm to the efforts to [sic] effectuate custody exchanges.Id. at 10-11.
In relation to the prior custody Order, the trial court stated in its Opinion as follows:
In awarding primary physical custody to Mother, the [c]ourt found that Father demonstrated a desire to frustrate Mother's relationship with [Child]. The [c]ourt also found that [Child] does want to conform to many of Father's expectations, and that [Child's] desire to please Father is negatively affecting his relationship with Mother. The [c]ourt noted that neither Father nor [Child] could testify to any positive attributes Mother possesses as a parent, thus indicating that [Child's] emotional connection to Mother is being hindered in some form[, and] that [it] is having a devastating effect on his emotional security and development. The [c]ourt also noted that, although the custody evaluator, Dr. [Douglas] Darnell, made no specific findings of parental alienation, [] Dr. Darnell's evaluation was completed prior to the fall of 2012, when [Child] began expressing his animosity towards [] [M]other[. Additionally], ... when Dr. Darnell was presented with hypothetical questions regarding behaviors displayed by [Child], he testified that those behaviors
were consistent with behaviors exhibited by a child suffering from parental alienation. The [c]ourt also indicated that [Child's] negative perception of Mother was irrational. The court further concluded that Father's actions have caused Mother's relationship with [Child] to suffer[,] and that he has enabled [Child's] unwarranted fears and trepidations of Mother. The court also concluded, in awarding primary physical custody and sole legal custody to Mother, that if Father was awarded such custody, [Child's] relationship with Mother would dissipate to the point of disrepair.Id. at 6-7 (footnote omitted).
While Father's appeal from the prior custody Order was pending, the parties filed several Petitions and Motions, which are more fully described in the trial court's Opinion; we adopt the trial court's recitation herein. See id. at 11-15. Most relevant to the instant appeal, on September 5, 2014, Mother filed a Petition for contempt ("September Petition for contempt"), asserting that Father had violated the prior consent Order by enrolling Child in the public school district that serviced the area of Father's residence in Westmoreland County, without Mother's consent or approval by the trial court.
In November 2014, and January 2015, the trial court held a custody trial with regard to the parties' competing Petitions for modification of the prior custody [O]rder, and Mother's Petitions for special relief and contempt in relation to that Order. On February 27, 2015, the trial court entered the Custody Order, which dismissed the parties' Petitions for modification of custody, and granted Mother special relief relating to enforcement of a particular provision of the Custody Order: paragraph 16. Paragraph 16 provided that law enforcement and/or child protective services were to return Child to Mother, regardless of the circumstances, if he runs away from her home while in her custody.
Paragraph 16 specifically provides as follows:
16. During the time that ... Mother ... has the right of physical custody pursuant to this Order, [] [C]hild shall not be permitted to be at the residence designated as ... Fireside ... without Mother's consent nor shall [Child] be permitted for any reason to be placed in the custody or control of ... Father ... or [M.E.S.] without Mother's consent, and no law enforcement officer, employee or agent of Lawrence County Child and Youth Services, nor any other agency or authority, shall place[] [C]hild in the custody or control of Father, during Mother's scheduled primary custody period, with the further direction that if for any reason [] [C]hild removes himself from Mother's custody, he is to be returned to Mother and not Father or anyone acting on Father's behalf.Custody Order, 2/17/15, ¶ 16.
Also on February 27, 2015, the trial court entered the Contempt Order, which, in relevant part, granted Mother's September Petition for contempt, based upon Father having unilaterally enrolled Child in a different school district. Mother alleged that Father's action violated a provision in the prior custody Order providing that Mother was the sole legal custodian of Child, and therefore, entitled to make all decisions concerning his education. Notably to the instant appeal, the Contempt Order did not impose any sanctions on Father.
Father timely filed Notices of Appeal from the Custody Order and Contempt Order, along with two Concise Statements of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In March 2015, Father filed in this Court a Motion to stay the Custody Order. Although we entered an Order temporarily granting the stay, on April 1, 2015, we entered an Order lifting the temporary stay and denying Father's Motion, directing Father to return Child to Mother two days later, at her residence. Approximately one week later, Father filed a second Motion to stay the Custody Order, which this Court denied.
At oral argument, on July 8, 2015, Father's counsel informed this panel that Child was placed in a foster care home, after having refused to return to Mother's custody. Father additionally brought this matter to our attention via a post-submission Application for Supplement to the Record, which we denied.
In his brief on appeal, Father presents the following issues for our review:
I. Whether the trial court committed an abuse of discretion in awarding sole legal and primary physical custody to Mother[,] when the facts of record demonstrated that there was a complete breakdown of the relationship between Mother and [C]hild[,] and[,] for the past 14 months, that Mother had no contact with [] [C]hild during this time, and despite having sole legal custody[,] repeatedly failed to act in [] [C]hild's best interest in meeting [C]hild's medical, dental, mental health and educational needs?
II. Whether the trial court committed an abuse of discretion in awarding primary physical custody to Mother[,] when the court engaged in no analysis [concerning] the effect of such an [award] on [] [C]hild as the circumstances existed at the time of trial, [which] uprooted [] [C]hild from school friends and his current life[,] and whether such an [award] was in [] [C]hild's best interest under the factors enumerated in 23 Pa.C.S. [§] 5328[,] and when Mother presented no current evidence to the [trial c]ourt as to her current ability to parent [] [C]hild as required under M.E.V. v. F.P.W., 100 A.3d 670 (Pa. Super. 2014)?
III. Whether the trial court committed an abuse of discretion in awarding primary physical and sole legal custody to Mother by failing to properly consider and/or completely disregard the uncontroverted testimony and opinion[s] of the [c]ourt-appointed experts[,] and failing to mandate reunification counseling[,] as recommended by the [trial c]ourt's experts?Father's Brief at 11.
IV. Whether the trial court committed an abuse of discretion when it found that Father had alienated [] [C]hild from Mother[,] when there was no evidence presented of parental alienation[,] [] neither expert testified that they believed there was parental alienation[,] and the finding was based on pure speculation?
V. Whether the trial court committed an abuse of discretion when it ordered that law enforcement and/or child protective services were to return [] [C]hild to Mother[,] regardless of the circumstances?
VI. Whether the trial court committed an abuse of discretion when it found Father in contempt of the [prior custody] Order [] by enrolling [] [C]hild in school[,] as Father's actions were not an "intentional, designed act and one without justifiable excuse." Com. ex rel. Wright v. Hendrick , 312 A.2d 402[, 404] ([Pa.] 1973); the [prior custody] Order was not definite, clear and specific; there was no volitional violation or wrongful intent; Mother failed to provide for schooling pursuant to 24 P.S. [§] 13-1327[,] the Compulsory School Attendance Law; when Father was required to always consider [] [C]hild's best interest, make sure that [] [C]hild continued to attend school, continue other activities beneficial to [] [C]hild's overall growth and development[,] and exercise daily parental responsibility when [] [C]hild was in his physical custody[; and] when Mother had abdicated her parental responsibilities?
In his Concise Statements, Father set forth his issues somewhat differently. Nevertheless, we determine that he preserved the issues for our review.
In custody cases, our standard and scope of review are 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); see also Bulgarelli v. Bulgarelli , 934 A.2d 107, 111 (Pa. Super. 2007) (stating that "[a]n abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused.") (citation omitted). Additionally, this Court has observed 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 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) (citation omitted).
As the custody trial in this matter was held in November 2014, and January 2015, the Child Custody Act (the "Act"), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable. C.R.F., 45 A.3d at 445 (holding that, if 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). With any custody case decided under the Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. Id. § 5338. Section 5328(a) of the Act sets forth the various factors that a trial court must consider when ordering any form of custody (collectively referred to as "the best interest factors"). Id. § 5328(a).
We will address Father's first and second issues together, since both involve challenges to the trial court's refusal to disturb the award of sole legal custody and primary physical custody to Mother under the prior custody Order. See Father's Brief at 21-34. Pointing to Child's repeated refusal to stay at Mother's residence during her custodial periods, Father asserts that Mother and Child are estranged. Id. at 22-23. According to Father, "Mother abandoned [Child] and any parental responsibilities for his care, safety, or emotional well-being when he refused to stay with her." Id. Father cites McDonel v. Sohn , 762 A.2d 1101 (Pa. Super. 2000), Snarski v. Krincek , 538 A.2d 1348 (Pa. Super. 1988), and Jones v. Stone , 495 A.2d 205 (Pa. Super. 1985), for the proposition that a parent's lack of involvement and abandonment of parental duties supports a modification of custody and award of custody to another person, even to a non-parent. Father's Brief at 27-28.
Father emphasizes that "the sole criterion in determining custody disputes is the best interest and paramount welfare of the child." Id. at 28-29 (quoting M.E.V., 100 A.3d at 679) (emphasis in M.E.V., citation omitted). Father points out the Court's statement in M.E.V. that "a trial court may not merely advert to prior, manifestly outdated findings of fact in lieu of express and fully explained reconsideration of those factors in the light of any changes in the parties' circumstances that occurred after the prior ruling and attendant explanation." Father's Brief at 27 (quoting M.E.V., 100 A.3d at 681). Father additionally contends that the trial court cannot "simply pay lip service" to the best interest factors in section 5328(a). Father's Brief at 34 (citing C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013)). According to Father, the trial court's Opinion "did not address which factor(s) weighed in favor of which party, ... or how the factors affected its decision. Instead, the [t]rial [c]ourt came to the conclusion that Mother's relationship with [Child] was paramount to his best interests[,] without reference to findings to support that conclusion." Father's Brief at 34.
Father argues that Child's best interests are served by awarding primary physical custody to him, as he is the only parent who has provided for Child's physical, intellectual, moral, and spiritual well-being during the approximately fourteen-month period prior to the entry of the Custody Order. Id. at 36. Pointing to this period of separation, Father contends that "Mother offered not one scintilla of evidence ... [as to] how she would keep Child in her care should Father[]" not be granted relief. Id. Father further asserts that the trial court abused its discretion by failing to consider the effect on Child of his immediate return to Mother and his removal from the Hempfield School District (i.e., where Father had enrolled Child without Mother's consent), absent the provision of immediate therapeutic intervention. Id.
In its Opinion, the trial court discussed the law concerning section 5328(a), set forth the best interest factors, and provided a thorough analysis of each of the factors. See Trial Court Opinion, 2/27/15, at 62-80., The trial court's analysis is sound and supported by the record, and we therefore adopt and incorporate it herein for purposes of Father's first and second issues. See id.
Effective January 1, 2014, section 5328 was amended to include an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child abuse and involvement with child protective services). Although applicable at the time of the custody trial in the present matter, there was no evidence that would have required the trial court's consideration of this factor.
We note that the trial court's discussion of factor 5328(a)(8) is not preceded by a heading, but appears to begin on page 71.
After addressing the law and the best interest factors, the trial court then stated in its Opinion as follows:
Although extensive proceedings have been held on the [parties'] competing requests for modification, and for special relief and findings of contempt, essentially nothing has changed subsequent to the proceedings that resulted in the ... [prior c]ustody Order[,] except that [Child] adamantly refuses to be with [] [M]other. [Child's] recalcitrance to being with [] [M]other was recognized by the trial judge in the prior proceedings. In the October [3], 2013 Opinion, the [trial] court noted that Father encourages [Child's] unreasonable
apprehension regarding Mother (Page 25); that Father has demonstrated a desire to frustrate Mother's relationship with [Child] (Page 29); that if Father is awarded primary physical and sole legal custody, [Child's] relationship with Mother will dissipate to the point of disrepair (Page 33); that the foregoing analysis finds fault in Father for enabling [Child's] unwarranted fears and trepidations of Mother; the [c]ourt believes that Father's actions have caused Mother's relationship with [Child] to suffer, but the [c]ourt does not believe that Father's actions should be characterized as alienating (Page 33).Trial Court Opinion, 2/27/15, at 81-82 (footnote in original).
Although the trial court in the prior proceedings stops short of characterizing Father's actions as alienating, the court did attribute [Child's] unfounded perceptions of [] Mother to be caused by Father's actions[,] and [found] that [Child's] thoughts about Mother paralleled those of Father.[FN 3] The court's prediction proved to be true, that if [Child] were left in the custody of Father, the relationship with [Child] and Mother would only deteriorate. However, the circumstance that allowed Father to have the custody was not brought about by court order, but by the fact that [Child] simply refused to be with Mother[.]
[FN 3] More recently, Mother filed an injunction proceeding against [M.E.S.,] seeking to enjoin her from interfering in the custody matters. [ H.T. v. M.E.S.], No. 1091 of 2014, C.A. The same trial judge [who] issued the ... Custody Order in this case denied injunctive relief, but in a Pa.R.[A.]P. 1925(a) Opinion[,] found that the "root of [] [C]hild's behavior seems to have been derived from [Father]." (Pa.R.A.P. 1925(a) Opinion dated February 4, 2015, page 10[)].
Our review of the record demonstrates that the trial court thoroughly considered each of the best interest factors, and its Custody Order sought to render a custody award in Child's best interests. Contrary to Father's assertion, the record reflects that the trial court did not merely rely on outdated findings. Rather, the court expressly and fully explained its consideration of the best interest factors, in light of the parties' actions, as concerns Child's best interests, following entry of the prior custody Order. The trial court determined that Mother had not abandoned Child, but, instead, Child, with Father's assistance, had acted to obviate the prior custody Order and deprive Mother of her court-awarded custody. Further, the trial court found that, under the circumstances, Child's best interests are served by maintaining the prior custody Order, awarding sole legal custody and primary physical custody to Mother, and dismissing the competing modification Petitions. We discern no abuse of discretion or error of law in the trial court's analysis, and its findings are supported by the record. Accordingly, we affirm based on the trial court's Opinion regarding Father's first two issues, see Trial Court Opinion, 2/27/15, at 62-82, and conclude that these issues lack merit.
Next, we address Father's third and fourth issues together. In his third issue, Father contends that the trial court abused its discretion by (1) awarding sole legal custody and primary physical custody to Mother in disregarding, or failing to adequately consider, the uncontroverted testimony and opinions of the court-appointed experts; and (2) failing to mandate reunification counseling, as recommended by these experts. See Father's Brief at 39-42. Father alleges that Dr. Martin Myers ("Dr. Myers"), the court-appointed psychologist who evaluated Child, testified that Child is flourishing in Father's custody, and recommended that Mother and Child engage in counseling, and that Mother and Father each participate in counseling. Id. at 37. Father states that Dr. Bruce Chambers ("Dr. Chambers"), the court-appointed custody evaluator who performed an updated custody evaluation, testified that it would be problematic to return Child to Mother's custody without therapeutic intervention. Id. at 40. Father argues that the trial court's Order directing the immediate return of Child to Mother is against the weight of the evidence and against the uncontroverted testimony of these two experts. Id. at 41. According to Father, the trial court improperly rejected Dr. Chambers's testimony. Id. at 41-42. In support of this argument, Father relies on Murphey v. Hatala , 504 A.2d 917 (Pa. Super. 1986), for the proposition that it is an abuse of discretion for the trial court to accept as unpersuasive, and to totally discount, uncontradicted expert testimony. Father's Brief at 41.
In his fourth issue, Father argues that the trial court abused its discretion when it found that he had alienated Child from Mother, where there was no evidence of parental alienation and neither Dr. Myers nor Dr. Chambers had opined that there was parental alienation. Id. at 46-48. According to Father, the trial court's finding of parental alienation was based on pure speculation, and Mother's mere allegations. Id. at 46-47. Additionally, Father asserts that "[n]early all of the evidence of record supports that it was Mother's actions, not Father's, that were estranging her from [Child]. Particularly relevant was Mother's complete rejection of [Child] for a period of over 14 months, a fact the trial court summarily ignores in its Opinion." Id. at 47.
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), this Court held that a trial court may not simply dismiss uncontradicted expert testimony unless the court's independent determination is supported by the certified record. Id. at 19-20. Although a trial court is not bound by the custody evaluator's conclusions, it must actually consider the expert's analysis. Id. at 20. The M.A.T. Court held that "[s]o long as the trial court's conclusions are founded in the record, the lower court was not obligated to accept the conclusions of the experts." Id. (citation omitted); see also King v. King , 889 A.2d 630, 632 (Pa. Super. 2005) (stating that, if the certified record supports a trial court's conclusions in a custody matter, the trial court is not required to accept an expert's conclusions and recommendations).
In its Opinion, the trial court provided a detailed explanation for its rejection of the expert testimony of Drs. Chambers and Myers, as concerns section 5328(a)(8) of the Act (i.e., the best interest factor pertaining to parental alienation), and set forth ample evidence in the certified record supporting the court's determination that Father had engaged in alienation. See Trial Court Opinion, 2/27/15, at 71-77, 83-86. Since the trial court's recitation of the evidence, and the court's determinations, are sound and supported by the record, we incorporate them herein with regard to Father's third and fourth issues. See id .; see also M.A.T., 989 A.2d at 19-20. We affirm on this basis in rejecting Father's third and fourth issues, as we conclude that the trial court properly exercised its discretion in finding that Father engaged in parental alienation, and in not following the custody experts' recommendations. See Trial Court Opinion, 2/27/15, at 71-77, 83-86; see also King , 889 A.2d at 632.
In Father's fifth issue, he argues that trial court abused its discretion when it directed, in paragraph 16 of the Custody Order, that law enforcement and/or child protective services must return Child to Mother if he runs away from her home while in her custody. See Father's Brief at 42-46. Father posits that, if Child refuses to stay with Mother, the effect of the provision is essentially an adjudication of Child as dependent, since it prohibits Child from being placed in Father's custody. Id. at 42-43. Father argues that the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. (governing the adjudication and disposition of delinquent and dependent children), does not provide for a restriction on the placement of a dependent child prior to an adjudication of dependency. Father's Brief at 44. According to Father, paragraph 16 (1) excuses Lawrence County Children and Youth Services ("CYS") from meeting its burden to establish Child's dependency under the Juvenile Act, id. at 42-43; (2) violates Father's due process rights, id. at 43; and (3) violates the statutory mandate set forth in section 6301 of the Juvenile Act, 42 Pa.C.S.A. § 6301(b)(1), requiring the preservation of family unity whenever possible. Father's Brief at 45. Finally, Father maintains that the trial court has scheduled a dependency hearing concerning Child, who is still in placement. Id.
Our review of the record reveals that trial court created paragraph 16 of the Custody Order in response to Mother's request for special relief for enforcement of the prior custody Order. See Trial Court Opinion, 2/27/15, at 81. The prior custody Order had granted Mother primary physical custody, but Child was obviating that Order by running away from Mother's residence. In light of Child's repeated refusal to see Mother, the trial court determined that this enforcement provision was necessary to ensure that the award of primary physical custody to Mother was enforced. See id. at 82 (stating that "the circumstance that allowed Father to have the custody was not brought about by court order, but by the fact that [Child] simply refused to be with Mother[. T]hat circumstance has been allowed to exist without being specifically addressed by the court relative to the aspect of enforcement of the [prior custody] Order."). We determine that the trial court's analysis supports its decision to grant Mother's request for special relief for enforcement of the prior custody Order.
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth its analysis and legal support involving the refusal of a child to visit his parent, which we incorporate herein by reference. See Trial Court Opinion, 2/27/15, at 82-83.
Moreover, as support for his argument that paragraph 16 is inappropriate for a custody order, Father relies generally on the Juvenile Act and case law under its statutory provisions. However, paragraph 16 does not refer to the Juvenile Act, nor does this Court have an appeal before it under the Juvenile Act. Father asks this Court rule on a matter raised in his second Motion for stay, which we denied until the matters raised therein are addressed by the trial court. In effect, Father would like this Court to prematurely rule on dependency proceedings that are before the trial court; we may not do so. See Pa.R.A.P. 302(a). Accordingly, we discern no abuse of discretion by the trial court's entering paragraph 16 in the Custody Order. Father is therefore not entitled to relief on his fifth issue.
We additionally observe that there is no information in the certified record regarding Child's allegedly pending juvenile adjudication and disposition, and/or his placement. See Commonwealth v. Preston , 904 A.2d 1, 6 (Pa. Super. 2006) (en banc) (stating that an appellate court is limited to considering only the materials in the certified record when resolving an issue).
Finally, Father argues that the trial court abused its discretion when it found him in contempt of paragraph 2 of the prior custody Order, which granted Mother sole legal custody of Child, and the authority to, inter alia, make major decisions concerning Child's education. See Father's Brief at 48-53. Concerning Father's unilateral enrollment of Child in the Hempfield School District, prior to the commencement of the 2014-2015 school year, Father asserts that "[b]y the Fall of 2014, Mother had not taken care of [Child], nor acted as [Child's] custodial parent," and "Mother made no efforts for appropriate schooling or enrollment for [Child], since he was not staying in her house." Id. at 48, 49.
It is well-established that "each court is the exclusive judge of contempts against its process." G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013) (citation omitted). Additionally, "[t]his Court must place great reliance on the sound discretion of the trial judge when reviewing an order of contempt[,]" and we will not disturb a trial court's findings on a contempt petition absent a clear abuse of discretion. Id.
To sustain a finding of civil contempt, the complainant must prove certain distinct elements by a preponderance of the evidence: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor's violation was volitional; and (3) that the contemnor acted with wrongful intent.P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation omitted).
Here, the trial court found that Father's enrollment of Child in the Hempfield School District, violated paragraph 2 of the prior custody Order. Trial Court Opinion, 2/27/15, at 89-90. The trial court also found that Father had acted without the approval of the court or the consent of Mother, who had sole legal custody. Id. Additionally, the court determined that Father had acted intentionally and willfully, pointing out the Hempfield School District enrollment form completed by Father, wherein he stated that he had custody of Child. Id. at 90. The trial court, therefore, granted Mother's September Petition for contempt. Id. at 90-91. However, the court deferred the imposition of sanctions, pending the opportunity for Father to purge himself of the contempt. The Contempt Order, at paragraph 5, provides the following purge condition:
5. [Father] shall purge himself of contempt by strictly complying with all provisions of the [C]ustody [O]rder entered contemporaneously with this Order and any subsequent orders in this case. [Father] shall be deemed to have purged himself of
contempt if he remains in compliance for a period of (6) months from the date of this Order.Trial Court Contempt Order, 2/27/15, ¶ 5.
We conclude that Father's appeal from the Contempt Order is interlocutory, as the Order imposes no sanctions on him. See Genovese v. Genovese , 550 A.2d 1021, 1022 (Pa. Super. 1988) (stating that, unless sanctions are imposed, an order declaring a party in contempt is interlocutory, and that a threat to impose sanctions in the future is neither final nor appealable). We, therefore, quash Father's appeal from the Contempt Order at Docket No. 462 WDA 2015 as interlocutory.,
On April 2, 2015, this Court issued a Rule on Father, directing him to show cause as to why this appeal should not be quashed as interlocutory. Father's counsel responded by claiming that the trial court used the contempt finding in its custody ruling in relation to the Custody Order. On April 17, 2015, we discharged the Rule, pending a review by this panel. Upon our review, we determine that the trial court, in making its Custody Order, did not rely upon the contempt finding. Rather, the trial court considered Father's unilateral actions in enrolling Child in the Hempfield School District, without the prior consent of Mother or the approval of the trial court. While these same actions were the basis for the trial court's contempt finding, the contempt finding was not the basis for the court's decision to maintain the prior custody Order in place. See Trial Court Opinion, 2/27/15, at 87-90.
In her brief, Mother requests the imposition of costs on Father. See Mother's Brief at 19. However, she has not filed a motion for costs or developed the request; accordingly, this claim is waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived."); see also Pa.R.A.P. 2119(a). --------
Appeal at Docket No. 454 WDA 2015 affirmed; appeal at Docket No. 462 WDA 2015 quashed as interlocutory. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2015
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