J-A20018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.D.C.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    D.C.                                       :
                                               :
                       Appellant               :   No. 568 MDA 2017

                 Appeal from the Order Entered March 20, 2017
               In the Court of Common Pleas of Columbia County
                     Orphans' Court at No(s): 365 of 2016


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.:                            FILED OCTOBER 23, 2017

       D.C. (“Mother”) appeals from the order entered on March 20, 2017 in

the Court of Common Pleas of Columbia County, which denied her motion to

authorize travel. We affirm.

       Mother, a citizen of the Russian Federation, and A.D.C. (“Father”), a

citizen of the United States, were married in March 2012. At that time, Mother

was an Assistant Professor at Mount Mercy University in Cedar Rapids, Iowa

and Father was a Major in the United States Army, stationed in West Virginia.1

In August 2012, Mother gave birth to twins, A.C. and K.C. (“Children”).

Following Children’s birth, Mother relocated to Bloomsburg, Pennsylvania in

Columbia County.

____________________________________________


1Father retired from the United States Army in October 2016. He subsequently
relocated to Virginia, where he is a contractor in the Department of Veterans
Affairs.
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      On March 21, 2016, Father filed for divorce, in which he included a count

for custody of Children. The parties subsequently appeared before Special

Master John McLaughlin, Esquire for a custody conference. Following the

conference, Master McLaughlin issued his report and recommended order of

court, which the trial court later approved. Both parties filed exceptions to

Master McLaughlin’s report, each raising a challenge to Master McLaughlin’s

travel ban against Mother, which stated, in pertinent part, as follows:

         c) Mother may not take the children to Russia in 2016 without
            express authorization from the Court. The trip was simply
            an issue that could not be negotiated. The Master shall
            inform the Court of the need for urgency in filing this case.
            However, the Master notes that during the summer of 2016
            the issue arises because Father married a Russian citizen
            knowing she had family in Russia and can be expected to
            visit periodically.

         d) Beginning in 2017, Mother may vacation in Russia with the
            children and visit with her parents unless Father obtains an
            Order of Court to the contrary.

Master’s Report and Recommendation, 5/12/16, at 6 (unpaginated).

      Specifically, Father argued Master McLaughlin erred by permitting

Mother to travel with Children to Russia in 2017. See Exceptions to Custody

Special Master’s Recommendation (Father), 5/13/16, at 1. Conversely, Mother

argued that Master McLaughlin erred by prohibiting her from travelling to

Russia, as she had historically travelled to the country every summer

throughout the parties’ marriage. See Exceptions (Mother), 5/23/16, at 3-5

(unpaginated).




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      The trial court held a hearing on Mother’s and Father’s exceptions.

Following the hearing, the trial court issued this order:

      AND NOW, this 24th day of June 2016, after hearing held
      concerning plaintiff father’s exceptions regarding the order
      pursuant to the Master’s recommendations dated May 12, 2016,
      allowing [Children] to travel to Russia in 2017, and defendant
      mother’s exceptions to said order denying her the right to travel
      to Russia with the minor children in 2016 without court
      authorization, the Court orders the following: Defendant Mother
      shall not travel with the minor children to Russia without
      prior court authorization or written authorization of Father
      in 2016 or subsequent years.

Order, 6/24/16, at 1 (emphasis in original) (footnote omitted). Neither Mother

nor Father filed an appeal.

      On August 8, 2016, counsel for Father sent a letter seeking to have a

second   custody    conciliation   scheduled.   See    Master’s   Report   and

Recommendation, 1/13/17, at 1 (unpaginated). In particular, Father wanted

the court to review his obligation to pay for the transportation of Children to

and from visits. See id. Master McLaughlin held a conference and

recommended that transportation be shared equally by the parties. See id.,

at 5 (unpaginated). And the court accepted the recommendation. Mother filed

exceptions to the recommendation, but the parties reached an agreement.

      On February 27, 2017, Mother filed a motion to authorize travel. The

court held a hearing and incorporated by reference the testimony from the

June 24, 2016 hearing. Following the hearing, the court denied Mother’s

motion and affirmed the prior custody order. Mother filed a timely notice of

appeal, along with a concise statement of errors complained of on appeal.


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      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.

R.L.P. v. R.F.M., 110 A.3d 201, 207-208 (Pa. Super. 2015) (citation omitted).

      Mother’s first and third issues are interrelated and can be addressed

together. Mother argues the trial court relied on evidence outside of the record

and ignored the applicable international agreements, thus abusing its

discretion. Specifically, Mother asserts, “the trial court [ ] based its decision

entirely on a presumption of international instability between the United

States and the Russian Federation affecting custody proceedings, for which no

evidence was provided by either party” and ignored evidence that Russia is a

signatory to the Hague Convention. Mother’s Brief, at 14, 22-23. The

testimony from which Mother complains states:

      THE COURT: I remember this really vividly from last time.
      [Attorney for Mother] you make a good point. Your client comes
      across nice. Her daughter is an all[-]star. I sure as heck hope she
      doesn’t go back. We need her here. But, it is so unstable, the
      relationship right now.

      [ATTORNEY FOR MOTHER]: Excuse me, your Honor?

      THE COURT: The relationship between the two countries is so
      unstable. I mean it is so unstable. So you see where I am going


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      on that. If I could throw in, last year there was an option, and I
      don’t know if, [Father], that option is available where splitting
      things so to speak, and doing the transfer in Germany in the
      middle of the two weeks if it is a four week visit over there. Is that
      still available, that option? I think you guys came up with it last
      year.

                               *     *      *

      THE COURT: I cannot change the order without a compromise
      such as the one. And I will entertain that compromise. In fact, I
      will entertain that proposal with an appropriate order to let one go
      at a time. I would entertain that. And, beyond that, I am not going
      to change the order from last year. And, if the whole purpose of
      this is to have the children be aware of their heritage and Russian
      heritage and so forth, which I think seems decent and a good idea,
      except for the instability of the two countries. But aside from that,
      I can’t see making an order. I will keep my mind open on that if
      you want to think about that.

      [ATTORNEY FOR MOTHER]: I guess I am asking that the Court
      please consider the things that were presented, especially the
      treaty that was entered and is still binding.

      THE COURT: I do, but as we speak Comey is speaking in
      Washington, and the relationships were going to be friendly
      between the new administration over there and have cooled off
      apparently. But who know[s]. And it is so uncertain as to what is
      going on between these two countries. I mean, it was bad enough
      last year, but it seems more uncertain and unstable at this time.
      I mean, there is no way I am going to do an order to allow the
      kids to go over and say, “oh, if you don’t come back we are going
      through the legal system.” I mean our legal system is pretty
      predictable. But, I don’t know if the Russian one is that
      predictable. I mean, it is not predictable at all.

N.T., 3/20/17, at 43-45. Mother also contends Father was required to offer

expert testimony in support of his theory concerning the international relations

between the countries. See id., at 16-17.

      Mother waived these claims. It is well-settled that “[i]n order to preserve

an issue for appellate review, a party must make a timely and specific

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objection at the appropriate stage of the proceedings before the trial court.

Failure to timely object to a basic and fundamental error will result in waiver

of that issue.” In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (citation

omitted)); see also Pa.R.A.P. 302(a). Mother failed to make any objection to

the trial court’s statements. Because Mother failed to object to the trial court’s

statements at the March 20, 2017 hearing, these two issues on appeal merit

no relief.

      Even if we had not found waiver, had we addressed the issues on the

merits, we would have concluded that the trial court did not abuse its

discretion.    While   Mother   presented   evidence      concerning   the   Hague

Convention and the degree of Russia’s participation, the trial court was free

to weigh this evidence as it saw fit. Likewise, this Court has stated the

following with regard to the taking of judicial notice:

             Pa.R.E. 201 governs judicial notice of adjudicative facts. The
      rule states: “A judicially noticed fact must be one not subject to
      reasonable dispute in that it is either (1) generally known within
      the territorial jurisdiction of the trial court or (2) capable of
      accurate and ready determination by resort to sources whose
      accuracy cannot reasonably be questioned.” Pa.R.E. 201(b). A
      fact is indisputable if it is so well established as to be a matter of
      common knowledge. Judicial notice is intended to avoid the formal
      introduction of evidence in limited circumstances where the fact
      sought to be proved is so well known that evidence in support
      thereof is unnecessary.

                Judicial notice allows the trial court to accept into
             evidence indisputable facts to avoid the formality of
             introducing evidence to prove an incontestable issue.
             However, the facts must be of a matter of common
             knowledge and derived from reliable sources “whose


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            accuracy cannot reasonably be questioned.”           Pa.R.E.
            201(b)(2).

Kinley v. Bierly, 876 A.2d 419, 421 (Pa. Super. 2005) (citations to cases

omitted).

      Here, the trial court took judicial notice of the fact that the United States

and Russia have had—and continue to have—a contentious relationship for

many years. “Generally, matters of history, if sufficiently notorious to be the

subject of general knowledge, will be judicially noticed.” Fatemi v. Fatemi,

537 A.2d 840, 847 (Pa. Super. 1988) (citation omitted). Accordingly, under

the facts of this case, we find no error in the trial court’s actions.

      Next, Mother claims the trial court abused its discretion by failing to

consider Children’s relationships with Mother’s extended family when

determining the best interests of Children. She suggests the trial court abused

its discretion “in trying to force the extended family to travel to the United

States rather than allow the minor children to travel to the extended family.”

Mother’s Brief, at 20. Again, Mother’s issue warrants no relief.

      The crux of Mother’s claim is the trial court’s alleged failure to afford the

appropriate weight to the importance of Children’s relationships with Mother’s

extended family. Our standard of review makes clear, however, that “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.”

R.L.P., 110 A.3d at 207-208. There is substantial evidence supporting the

findings made by the trial court and, in fact, the trial court did consider

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Children’s relationship with Mother’s extended family. Accordingly, because

Mother asks us to re-weigh the evidence, she is not entitled to relief on this

issue.

         Mother’s fourth issue asserts the trial court exhibited bias against the

Russian Federation and its citizens. Mother cites several instances where the

trial court’s adverse rulings against her allegedly evidence the court’s attitude

toward her and her country of citizenship, complaining that the trial court

“verbalized several statements indicating a preference against the Russian

Federation,” and that this Court must reverse the court’s decision as a result

of the trial court’s bias. Mother’s Brief, at 26. We disagree.

         Mother does not specifically argue for the trial court’s recusal; therefore,

she phrases her claim in the guise of an abuse-of-discretion standard relating

to her previous claims. However, we have already concluded that the trial

court did not abuse its discretion in fashioning the instant order. Moreover,

we have examined Mother’s specific allegations of bias, and we find no merit

to her claim. Mother’s allegations of bias consist of nothing more than

disagreements between the trial court and counsel, and the trial court’s effort

to clarify testimony. Accordingly, we find no merit to Mother’s claims.

         For Mother’s final issue, she argues that the trial court erred by failing

to consider each of the sixteen factors that must be considered pursuant to




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23 Pa.C.S.A. § 5328(a) in its June 24, 20162 and March 20, 2017 orders.

Mother also argues the trial court did not provide its rationale for its decision,

as required by § 5328(d).

       The trial court does not address Mother’s assertion that it erred by failing

to consider the § 5328(a) factors. Rather, the trial court concluded that, “[a]s

to a best interest analysis, simply stated, it is in the best interests of the

children to have contact with both parents. It is in the best interest of the

minor children to not be subjected to an international legal dispute.” Trial

Court Opinion, 4/7/17, at 4.

       With any custody case decided under the Custody Act, the paramount

concern is, of course, the best interests of the child. See 23 Pa.C.S.A §§ 5328

and 5338. And, upon petition, a trial court may modify a custody order if it

serves the best interests of the child. See 23 Pa.C.S.A § 5338(a).

       The Custody Act sets forth the best interest factors the trial court is to

consider. See 23 Pa.C.S.A § 5328(a)(1)-(16). These factors must be

considered when making an initial award of custody, see 23 Pa.C.S.A. §



____________________________________________


2 To the extent Mother, in her brief, attempts to argue that the trial court erred
by failing to consider the § 5328(a) factors in its June 24, 2016 order, her
claim is waived for two reasons. First, Mother was required to challenge the
ruling within thirty days of the June 24, 2016 order. See Pa.R.A.P. 903(a)
Mother’s attempt to raise this issue now is untimely. Second, even if Mother’s
appeal was timely, Mother did not raise this issue in her Rule 1925(b)
statement. See Dietrich v. Dietrich, 923 A.2d 461, 463 (Pa. Super. 2007)
(“When an appellant files a Pa.R.A.P. 1925(b) statement, any issues not raised
in that statement are waived on appeal.”)

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5323(a), or “a modification that also entailed a change to an award of

custody,” M.O. v. J.T.R., 85 A.3d 1058, 1062 (Pa. Super. 2014) (footnote

omitted). “By contrast, while the court must consider the child’s best interest

when modifying a custody order, the modification provision does not refer to

the sixteen factors of Section 5328.” Id. (citing 23 P.C.S.A. § 5338(a)). See

also S.W.D. v. S.A.R., 96 A.3d 396, 403 (Pa. Super. 2014).

       Here, Mother sought to travel with Children during her regularly allotted

custody time. Mother did not challenge the parties’ award of custody nor was

“a modification that also entailed a change to an award of custody” ever at

issue. Thus, the trial court was not required to consider the § 5328 factors

before ruling on discrete and ancillary issues completely subsidiary to the

award of custody.3 The trial court correctly considered Children’s best

interests.

       In summary, we find the trial court did not abuse its discretion in

denying Mother’s motion to authorize travel.

       Order affirmed.

       President Judge Gantman joins the memorandum.

       President Judge Emeritus Ford Elliott files a concurring statement.




____________________________________________


3 We are aware of this Court’s opinion in A.V. v. S.T., 87 A.3d 818 (Pa. Super.
2014). However, A.V. involved a direct modification of the “type” of custody
(from shared physical to partial physical custody) and substantially reduced
Father’s time with the children. A.V. is readily distinguishable.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2017




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