Opinion
J-A21037-16 No. 285 EDA 2016
02-14-2017
T.L.L., a/k/a T.L.P. v. R.F.P., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order December 23, 2015 in the Court of Common Pleas of Philadelphia County, Family Court at No(s): 0C1000744 BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
R.F.P. ("Father"), pro se, appeals from the Order granting (1) in part, the Petition, filed by T.L.L. a/k/a T.L.P. ("Mother"), seeking to modify custody of R.P.P. ("R.P."), born in March of 2005; and (2) one of Mother's contempt Petitions against Father, and directing him to pay $500 in attorney's fees to Mother's counsel. We affirm.
Father is an attorney, licensed to practice law in the Commonwealth of Pennsylvania.
The parties have two other children who have been involved in these custody proceedings: S.P. (born in May of 2006); and E.P. (born in June of 2008) (all three children will collectively be referred to as "Children").
In its Opinion, the trial court set forth the relevant factual and procedural history of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 2/19/16, at 1-3.
The trial court entered the Order ruling on Mother's custody modification and contempt Petitions on December 23, 2015. On January 19, 2016, Father timely filed a Notice of Appeal, along with a Concise Statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Father has attached to his brief a Supplemental Concise Statement. However, our review discloses no request for, or order granting, leave to file a supplemental concise statement. Nor is there any entry on the docket indicating that such document was ever filed with the trial court. Therefore, we decline to address any issue raised in that document. See Korman Commercial Props. v. Furniture.com , LLC , 81 A.3d 97, 102 (Pa. Super. 2013) (deeming as waived an issue that was not raised and preserved properly before the lower court in the concise statement); see also Pa.R.A.P. 1925(a)(2)(i) (requiring that the appellant in a Children's Fast Track case to file the concise statement contemporaneously with the notice of appeal, so that the trial court will respond to the issues raised, and this Court can conduct proper appellate review).
On appeal, Father raises the following issues for our review:
I. Whether the judge erroneously denied recusal where she has demonstrated an unwavering pattern of bias favoring the abusive, suicidal [Mother], including (1) purposefully making hearsay "errors" to [Mother's] advantage[;] (2) treating [C]hildren as a party[;] and (3) refusing to acknowledge Father's contempt allegations against [Mother], thus adversely affecting the best interests of [C]hildren?
II. Whether the [trial] judge impermissibly relied on her own personal beliefs with respect to parental communication and, in so doing (1) expressly refused to follow this court's binding standard of "minimum of communication" between custodial parties[;] and (2) prevented Father from introducing and ignored relevant and undisputed evidence of [Mother's] physical abuse of [Father]?
III. Whether the [trial] judge's singular finding of contempt was pretextual because it[] (1) was not only unsupported by the
record[;] but (2) contradicted by [Mother's] own testimony[;] and (3) separated [C]hildren without justification?Father's Brief at 3.
IV. Whether the court erred in ordering Father to pay [Mother's] counsel $500.00 in attorney's fees?
In his first issue, Father contends that the trial judge, the Honorable Holly J. Ford ("Judge Ford"), erred by denying his recusal Petition because she demonstrated bias in favor of Mother by "(1) purposefully defying the rules of hearsay in [Mother's] favor[;] (2) treating [C]hildren as a party[;] and (3) refusing to litigate Father's filed counterclaims of contempt against [Mother]." Id. at 16. Father asserts that, at the hearings conducted on May 17, 2013, and June 4, 2015, the trial court admitted emails, sent from Mother to Father, wherein Mother purported to paraphrase statements made by Children. Id. at 25. According to Father, Judge Ford stated, "I will allow it as an exception to hearsay, because I consider [C]hildren a party. Not everybody does that; I do." Id. (citing N.T., 5/17/13, at 19) (emphasis omitted). Father claims that Judge Ford erred by admitting the emails because children are not parties to contempt or custody proceedings. Brief for Appellant at 25.
Father also argues that he filed counter-claims of contempt against Mother, and that the trial court refused to consider such claims "because, she speculated, Father had not 'paid' any money for the filings ...." Id. at 31. Father insists that he filed the contempt complaints, and that the trial court's statements otherwise are false, and demonstrate her bias toward him. Id. at 31-32.
In his brief, Father cites additional claims of error and bias by the trial judge. See Father's Brief at 31, 32-35. However, as related to Father's first issue, the only claims preserved for our review are that the trial court "(1) purposefully ma[de] hearsay 'errors' to [Mother's] advantage; treat[ed C]hildren as a party; and (3) refus[ed] to acknowledge Father's contempt allegations against [Mother] ...." See id. at 3; see also Pa.R.A.P 2116(a) (providing that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."); Korman , supra . (deeming as waived any issue not raised in the concise statement).
In its Opinion, the trial court addressed Father's first issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 2/19/16, at 4-9. We agree with the reasoning of the trial court, which is supported by the record and free of legal error, and affirm on this basis as to Father's first issue. See id.
In his second issue, Father contends that Judge Ford "impermissibly relied on her own personal beliefs regarding parental communication" and ordered "excessive contact and [an] unreasonable standard of conduct" between the parties. Father's Brief at 36-37, 46, 49. Father asserts that shared custody requires only that custodial parents maintain a minimal degree of communication. Id. Father claims that Judge Ford "explicitly refused to follow this Court's binding standard and replaced it with an impossible standard." Id. at 50. Father argues that Judge Ford
modified the custody Order to require Father to (1) inform [Mother] ahead of time[,] in writing[,] of any physician or dentist appointments ...; (2) respond within 96 hours to [Mother's] emails ...; and (3) ignored this Court's "minimal cooperation"
standard in favor of a higher, "full" cooperation standard that no custodial party could possibly achieve ..., thus more easily exposing Father to more serial contempt petitions and a lower burden of proof for Mother.Id. at 50-51. Father contends that "[t]he law does not require [him] to be amicable - or even civil - to [Mother]." Id. at 52. Father asserts that Judge Ford "improperly modified the custody [O]rder to require an illegal, heightened standard of interaction between the parties ...." Id. at 52.
Contrary to Father's characterization, our review of the custody Order discloses that it requires both parties to (1) inform each other ahead of time, in writing, of any physician or dentist appointments; (2) respond within 96 hours of a request by the other party to enroll Children in activities; and (3) to "strive" for "full co-parenting skills." Custody Order, 12/22/15, at 3.
Father also attempts to argue that the trial judge improperly determined that Father's evidence of Mother's behavior was "not relevant to the issue of how Father must deal with [] abusive[,] overly-litigious and querulous [Mother]," and erred by refusing to let Father testify as to Mother's "heinous acts of physical abuse." Father's Brief at 37-46. However, Father failed to raise this issue in his Concise Statement. Consequently, it was not addressed by the trial court in its Pa.R.A.P. 1925(a) Opinion. Although Father purported to raise this issue in his Supplemental Concise Statement, for the reasons stated previously we decline to address any issue raised in that document.
In its Opinion, the trial court addressed Father's second issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 2/19/16, at 18-19 (explaining that the communication requirements included in the custody Order were necessary to prevent Children from being exposed to "unnecessary, duplicative medical appointments; frustration from conflicting extracurricular activities, and/or [the] burden [of] unnecessary, duplicative work on school projects."). We agree with the reasoning of the trial court, which is supported by the record and free of legal error, and affirm on this basis as to Father's second issue. See id.
As the first two parts of Father's third issue and his fourth issue are related, we will address them together. In the first two parts of his third issue, Father contends that "the [trial] judge's singular finding of contempt was pretextual, used only to severely punish Father because the judge harbors personal animosity against him." Father's Brief at 54. Father asserts that the finding was unsupported by the record and contradicted by Mother's testimony that the underlying custody mix-up was an honest mistake by Father. Id. Father claims that the custody Order under which the parties were operating included an "unusual and complicated multi-day custody exchange for Christmas and New Year['s Day,]" which "drastically departed from the usual week-to-week custody arrangement." Id. at 55. Father argues that the trial court ignored his testimony that he returned Children late over the Christmas holiday because he misread the holiday custody arrangement. Id. at 56. Father contends that there was no evidence of wrongful intent, and that the trial court's contempt ruling was merely a pretext to punish Father. Id. at 59.
In his fourth issue, Father contends that the trial court erred in ordering him to pay $500 in attorney's fees to Mother's counsel. Father's Brief at 65. Father asserts that, pursuant to the Child Custody Act (the "Act"), 23 Pa.C.S.A. §§ 5321-5340, a court may not award counsel fees, costs or expenses to a party unless it finds that the conduct of another party was obdurate, vexatious, repetitive or in bad faith. Id. at 65 (citing 23 Pa.C.S.A. § 5339). Father claims that the conduct which formed the basis of the fee award was a "one-time mistake regarding a confusing custody schedule change." Id. at 66. Father argues that Mother's conduct, and not his, was obdurate, vexatious, and in bad faith. Id. Father contends that the only basis for the fee award is the trial judge's "personal ill-feelings" toward Father, and her "sympathetic or emotional identification with [Mother]." Id. at 71.
In its Opinion, the trial court addressed the first two parts of Father's third issue and his fourth issue, set forth the relevant law, and determined that the issues lack merit. See Trial Court Opinion, 2/19/16, at 19-23. We agree with the reasoning of the trial court, which is supported by the record and free of legal error, and affirm on this basis as to the first two parts of Father's third issue and his fourth issue. See id.
In the final part of his third issue, Father contends that the trial court erred by reducing his custodial time with R.P. by one full day per week. Father's Brief at 60. Father asserts that the trial judge found him in contempt as a pretext to punish him "simply because she personally dislikes him." Id. Father points to the trial court's stated basis for the change, i.e., to permit Mother to take R.P. to counseling on Fridays, and claims that there was no need to remove R.P. from Father's custody on Thursday nights. Id. Father also argues that he could take R.P. to counseling on Fridays. Id. Father contends that the reduction of his custodial time with R.P. was not justifiable. Id. at 63.
In 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. 23 Pa.C.S.A. § 5338; see also E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super. 2011). Section 5328(a) sets forth a list of sixteen factors that the trial court must consider when making a "best interests of the child" analysis for a custody determination. See 23 Pa.C.S.A. § 5328(a). Moreover, section 5323(d) mandates that, when the trial court awards custody, it "shall delineate the reasons for its decision on the record in open court or in a written opinion or order." Id. § 5323(d).
See 23 Pa.C.S.A. § 5321 et seq. Because the custody trial was held in 2015, the Act applies to this case. See C.R.F. v. S.E.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).
Section 5328(a) of the Act provides as follows:
§ 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).
(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.Id. § 5328(a).
(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.
Effective January 1, 2014, the Act was amended to include an additional factor at 23 Pa.C.S.A. § 5328(a)(2.1). As this subsection was applicable at the time of the custody trial in the present matter, the trial court considered it when making its modification determination. See Trial Court Opinion, 2/19/15, at 11.
In its Opinion, the trial court addressed the final part of Father's third issue, set forth the relevant law, and determined that the issue lacks merit. See Trial Court Opinion, 2/19/16, at 10-18 (wherein the trial court discussed each of the sixteen custody factors set forth in the Act, and determined that the modification was in R.P.'s best interest). We agree with the reasoning of the trial court, which is supported by the record and free of legal error, and affirm on this basis as to the final part of Father's third issue. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/14/2017
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