J-A02033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

H.M.R.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

K.M.

                            Appellant                 No. 1067 MDA 2015


                  Appeal from the Order Entered May 22, 2015
                In the Court of Common Pleas of Dauphin County
                     Civil Division at No: 2014-CV-05396-CU


BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 25, 2016

        Appellant, K.M. (“Mother”), appeals from the May 22, 2015 custody

order entered in the Court of Common Pleas of Dauphin County. Appellant

argues the trial court abused its discretion or committed error of law by

entering an order granting shared custody of H.S.R. (“Child”) to Mother and

Appellee, H.M.R. (“Father”). Mother also contends the trial court erred by

denying Mother’s motion to recuse. Following review, we affirm.

        Child was born on May 8, 2013, the product of a relationship between

Mother and Father who never married but co-habitated until early June of



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A02033-16


2014. At that time, Mother moved with the Child to the home of her parents

and continued to reside there throughout these proceedings.

      On June 14, 2014, Father filed an emergency petition seeking primary

physical custody to Father and supervised partial custody to Mother. That

petition was denied by order entered the same date and marked the

beginning of a series of hearings and court filings, including requests for

protection of abuse (“PFA”) orders filed by Mother and contempt petitions

filed by Father. A July 25, 2014 interim order memorialized an agreement

between Mother and Father awarding primary physical custody to Mother

and partial physical custody to Father. A subsequent interim order entered

on September 3 expanded the locations for Father’s visits and called for

psychological evaluations of the parties. An assessment was completed by

Raymond S. Klein, EdD., a licensed psychologist, who issued a report dated

October 9, 2014.

      The trial court conducted a hearing on October 17, 2014, at which Dr.

Klein testified.   The hearing, scheduled to address custody as well as a

petition for contempt filed by Father, resulted in an agreement incorporated

in a December 22, 2014 order granting shared legal custody with primary

physical custody to Mother and partial physical custody to Father and

reflecting an intent to increase Father’s periods of physical custody.

      The trial court set a custody hearing for March 27 and April 30, 2015.

On March 20, counsel for Mother filed a motion seeking recusal of the trial


                                     -2-
J-A02033-16


judge. Mother’s counsel explained that she had been counsel of record for

Mother since December 9, 2014 when prior counsel withdrew.         Motion for

Recusal, 3/20/15, at ¶ 5.   Counsel claimed, inter alia, that the trial judge

disclosed in chambers on February 13, 2015, that a witness for Father had

been an employee of the judge but “further commented that he would not

say what type of employee the [witness] was.” Id. ¶ 17. “On February 13,

2015, based upon only that scant information, His Honor inquired whether

Mother would request recusal. As entered upon the record, Mother did not

request recusal at that time based upon only that information.” Id. at ¶ 18.

Counsel expounded upon her reasons for recusal as discovered during trial

preparation from March 11 through 16 and suggested that the information

discovered gave rise to an appearance of impropriety. Id. at ¶¶ 19-27.

      By order entered on March 25, 2015, the trial judge scheduled a

hearing on the recusal motion to take place immediately before the March

27 custody hearing.    At the March 27 proceedings, the trial court heard

argument on the motion to recuse and explained its preliminary ruling

denying the motion while reserving to counsel the right to renew her motion

at the conclusion of the hearing.    Notes of Testimony (“N.T.”), Hearing,

3/27/15, at 1-34.     The focus then turned to the custody issues for the

balance of the March 27 proceedings. The hearing resumed on April 30. At

the conclusion of the April 30 proceedings, Mother’s counsel offered two

additional exhibits in support of the recusal motion. The trial judge admitted


                                    -3-
J-A02033-16


the exhibits and announced he would consider them. N.T. Hearing, 4/30/15,

at 369-70.

       By order entered May 22, 2015, the trial court granted shared legal

custody and shared physical custody. Custody Order, 5/22/15, at 1-5. In

its accompanying memorandum opinion, the trial court summarized the

testimony presented during the custody proceedings and addressed the

sixteen factors to be considered in awarding custody in accordance with 23

Pa.C.S.A. § 5328(a). Trial Court Opinion (“T.C.O.”), 5/22/15, at 16-30. The

trial court also explained its denial of the recusal motion, stating in part:

       The complaint was filed on June 10, 2014, and it took
       approximately nine (9) months to get it to a hearing based on
       the number of continuances, and collateral issues involved.
       Since Dauphin County only has three (3) judges to hear the high
       volume of family law matters, [Father’s] counsel was concerned
       that another judge would not have adequate time to review the
       lengthy history of the case.       The difference in perception
       between the parties is a major dispute in the case, and
       necessitates the need to resolve it quickly as opposed to kicking
       it down the line further.

       Mother’s Motion for Recusal was denied because the [c]ourt does
       not believe there is an appearance of impropriety with regard to
       [D. D-B].[1] The [c]ourt has been involved in this case long
       before her involvement with Father became known at the
       February 3, 2015 PFA hearing. It was disclosed to counsel at
       that time who agreed there was no conflict. The issue was again
       raised at the February 13, 2015 contempt hearing and counsel
____________________________________________


1
  At the time of the hearing, [D. D-B] was engaged to Father and was one of
the individuals involved in transfer of the Child between Mother and Father.
As will be addressed in greater detail herein, [D. D-B] was previously
employed by the law firm with which the trial judge was affiliated in the year
prior to his election to the bench.



                                           -4-
J-A02033-16


     again agreed there was no conflict. At no time did counsel
     inquire further as to the [c]ourt’s familiarity with one of Father’s
     witnesses. It appears this was just another one of Mother’s
     attempts to delay the custody hearing and control Father’s
     custodial time with [Child].

T.C.O., 5/22/15, at 14-15.

     Mother filed a timely appeal from the May 22, 2015 order.              Both

Mother and the trial court complied with Rule of Appellate Procedure 1925.

In her Rule 1925(b) statement, Mother raised six errors complained of on

appeal. In its 1925(a) opinion dated July 17, 2015, which supplemented its

May 22, 2015 opinion, the trial court addressed and rejected each of the six

contentions. Trial Court Opinion (“Rule 1925(a) Opinion”), 7/17/15, 1-10.

     In her brief filed with this Court, Mother identifies five issues for our

consideration:

     1. Did the trial court abuse its discretion or commit[] an error of
        law by awarding shared physical custody on an equal time
        basis when the Parties failed to meet this Court’s four part
        criteria of In [r]e Wesley J. K.?

     2. Did the trial court abuse its discretion or commit an error of
        law by failing to modify the Custody order in the best interest
        of the children?

     3. Did the trial court abuse its discretion or commit an[] error of
        law by refusing to recuse himself upon Mother’s timely
        motion?

     4. Did the trial court abuse its discretion or commit an error of
        law by considering evidence not of record in the custody
        proceedings and outside of the record for its custody decision
        and order?

     5. Did the trial court abuse its discretion or commit an error of
        law in making adverse conclusions against Mother of specific

                                    -5-
J-A02033-16


          circumstances where Mother was protecting herself from
          abuse and in rejecting evidence of abuse in awarding shared
          physical custody?

Mother’s Brief, at 6-7. While the questions presented in Mother’s brief do

not mirror the errors complained of in her 1925(b) statement, they do

incorporate the spirit, if not the language, of the 1925(b) issues.2 Therefore,

we shall address them.

       We begin by setting forth our scope and standard of review.

       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.S. v. T.T., 113 A.3d 1254, 1257 (Pa. Super. 2015) (quoting V.B. v.

J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012)).

       In her first two issues, Mother complains that the trial court abused its

discretion or committed error of law by awarding shared custody and by
____________________________________________


2
  By way of example, the phrase “best interest of the child” does not appear
in Mother’s 1925(b) statement but is the subject of the second issue
presented in her brief. In light of the fact that the grant of shared custody
requires a “best interest of the child” analysis, we do not find Mother’s
second issue waived.



                                           -6-
J-A02033-16


failing to modify the custody order in the best interests of the Child.

Because the best interests of the Child are central to both discussions, we

shall address the issues together.

       Addressing Mother’s challenge to the shared custody ruling, the trial

court rejected Mother’s contention that the parties did not meet the legal

criteria for shared custody, stating:

       The [c]ourt first notes that since the promulgation of the child
       custody factors enumerated in 23 Pa.C.S.A. § 5328, there is no
       longer a legal prerequisite for shared custody. The statute is
       very clear that the [c]ourt must consider the sixteen (16)
       statutory factors in making a determination of child custody,
       including shared physical custody.

Rule 1925(a) Opinion, 7/17/15, at 6.           We agree.   Section 5328(a) directs

that the trial court “shall determine the best interest of the child by

considering all relevant factors,” including the sixteen enumerated in the

statute, when “ordering any form of custody.”              23 Pa.C.S.A. § 5328(a)

(emphasis added).

       Mother cites R.S. v. T.T., supra, in support of her contention that the

trial court must consider not only the § 5328 factors, but also four factors

set forth in In re Wesley, J.K., 445 A.2d 1243 (Pa. Super. 1982), which

this Court summarized as requiring “that 1) both parents are ‘fit,’[3] 2) both

____________________________________________


3
  With respect to stating the both parents be “fit,” this Court in Wesley,
J.K., explained, “Both parents must be sane and capable of making rational
child-rearing decisions. Both must be willing and able to provide love and
care for their children.” Id., 445 A.2d at 1248.



                                           -7-
J-A02033-16


desire continuing involvement with their child, 3) both parents are seen by

the child as sources of security and love, and 4) both parents are able to

communicate and cooperate in promoting the child's best interests.” Id. at

1249. However, a reading of the enumerated factors in § 5328(a) reveals

that the four “Wesley, J.K.” factors are fairly encompassed by the

enumerated factors for awarding “any form of custody.”            23 Pa.C.S.A.

§ 5328(a).   The trial court addressed each of the § 5328(a) factors in its

May 22, 2015       opinion, supplemented by      its Rule    1925(a)   opinion.

Therefore, we reject Mother’s assertion that the trial court failed to consider

the relevant factors for shared custody.

      In its opinion issued in conjunction with the May 22, 2015 custody

order, the trial court recognized that “[p]ursuant to the current Child

Custody Act, before making any custodial award, the [c]ourt must determine

‘the best interests of the child by considering all relevant factors, giving

weighted consideration to those factors which affect the safety of the child,’

including the sixteen (16) statutorily defined factors.”    T.C.O., 5/22/15, at

26 (quoting 23 Pa.C.S.A. § 5328(a) and citing J.R.M. v. J.E.A., 33 A.3d

647, 652 (Pa. Super. 2011)). The trial court proceeded to consider each of

the sixteen factors, finding:

      (1)    Which party is more likely to encourage and permit
             frequent and continuing contact between the child and
             another party.

      Mother has been unwilling to agree to anything more than
      supervised visitation for father since the parties separated. This

                                     -8-
J-A02033-16


       is evidence by the filing of two (2) PFA actions, criminal charges,
       and Children and Youth allegations against father. Both PFA’s
       and the Children and Youth reports were unfounded and
       unsubstantiated. The criminal charges are still pending, but of
       questionable merit. Despite the number of allegations lodged
       against father, he testified that he continues to encourage the
       child’s relationship and contact with Mother.[4]

       (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.

       Aside from Mother’s unsubstantiated allegations of abuse by
       Father, there was no testimony of any abuse between the
       parties, or towards the child.

       (3)    The parental duties performed by each party on behalf of
              the child.

       Both parties testified as to their ability to perform   parental duties
       on behalf of [Child]. Although Mother questions         Father’s ability
       to care for the child, the testimony indicates          that father is
       capable of doing so, and has raised two (2)             other children
       previously.

       (4)    The need for stability and continuity in the child’s
              education, family life and community life.
____________________________________________


4
   With regard to factor one, as well as factors two, nine, twelve, thirteen and
fifteen, Mother contends the trial court’s determinations are unsupported by
the record and constitute an abuse of discretion. Mother’s Brief, at 34-40.
We disagree and conclude those conclusions are not unreasonable in light of
the evidence presented in the testimony of the parties themselves as well as
the witnesses who supported Father and those who supported Mother.
While the testimony from those in “Father’s camp” conflicted with testimony
from those in “Mother’s camp,” it was up to the trial court, as finder of fact,
to assess the testimony. Further, to the extent the statements in the trial
court’s opinion represent the trial court’s credibility assessments, those
credibility determinations are for the trial court, not this Court. See, e.g.,
R.S., 113 A.3d at 1257.



                                           -9-
J-A02033-16



        Due to the highly contentious nature of this custody action, both
        parties need to work on maintaining stability and continuity for
        the sake of the child.[5]

        (5)   The availability of extended family.

        Mother currently resides with her parents, and has seven (7)
        siblings, most of whom still reside in the area.     Paternal
        Grandparents also live in the area.

        (6)   The child’s sibling relationships.

        The child has two (2) half-siblings, [G][6] and [M]. [Child] sees
        [G] every Sunday when [Y] comes to Maternal Grandparents’
        home for dinner. There was no testimony as to whether [Child]
        sees [M].

        (7)   The well-reasoned preference of the child, based on the
              child’s maturity and judgment.

        The [c]ourt did not interview [Child] due to his young age.

        (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.

        There are no allegations that either party has attempted to turn
        the child against the other parent, to date. However, the [c]ourt
        is concerned that this will occur in the future if the parties do not
        receive professional intervention.

____________________________________________


5
  Mother suggests the trial court’s statement with respect to the fourth
factor represents a “failure to assess” that constitutes “an error of law.”
Mother’s Brief, at 38. We disagree. The statement reflects the trial court’s
assessment of the relationship between the parties and the efforts required
going forward, to serve the best interest of Child.
6
    [G] is the son of Father and Mother’s younger sister, [Y].




                                          - 10 -
J-A02033-16


     (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.

     Mother has a significant history of mental illness, which appears
     to remain unresolved. In fact, Mother denies any mental health
     concerns. If it continues to be untreated, there is a question as
     to whether Mother would be able to maintain a stable and
     consistent relationship with the child.

     (10) Which party is more likely to attend to the daily physical,
          emotional, developmental, educational and special needs
          of the child.

     Mother has been unemployed since October 2013 and is
     available to care for the child full-time. Father is self-employed,
     and has flexibility to adjust his hours around the child’s needs.

     (11) The proximity of the residences of the parties.

     Both parties reside in Harrisburg and are approximately twenty
     (20) minutes apart.

     (12) Each party’s availability to care for the child or ability to
          make appropriate child-care arrangements.

     Father testified as to their availability to care for [Child], and his
     ability to make child-care arrangements. Mother testified that
     she is always available to care for the child. There was no
     testimony from Mother as to what child-care arrangements
     would be made in the event she is unavailable to care for the
     child.

     (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.

     There is a significant level of contention between the parties due
     to the fact that they have two (2) very different perceptions of
     reality. Dr. Klein testified that both parties need to undergo
     individual counseling to address their personal issues.         He
     further indicated that Mother needs to address her past traumas,

                                    - 11 -
J-A02033-16


     as those tend to distort her perception of reality in regard to
     Father.   Dr. Klein stressed that the “linchpin” to effective
     parenting is for Mother’s history to be examined through
     psychotherapy.

     (14) The history of drug or alcohol abuse of a party or a
          member of a party’s household.

     There is no substantiated history of drug or alcohol abuse by
     either party.

     (15) The mental and physical condition of a party or a member
          of a party’s household.

     Mother has a history of mental illness, which has been the
     primary issue in this highly contentious custody dispute. As
     stated above, Dr. Klein stressed that Mother has suffered past
     traumas that cause her to distort reality. Mother’s mental health
     issues became evident throughout all of the proceedings —
     including the PFA hearings.

     (16) Any other relevant factor.

     No other significant factors were considered.

T.C.O., 5/22/15, at 27-30.

     In its Rule 1925(a) opinion, the trial court expressed its belief that “it

was extremely fair and spent a considerable amount of time agonizing over

the sixteen (16) custody factors.” Rule 1925(a) Opinion, 7/17/15, at 1. It is

clear from the trial court’s analysis that while one parent or the other

“measured” higher for some factors, the overall weighing of the factors

supported the continuation of shared legal custody and the grant of shared

physical custody.

     Accepting the findings of the trial court as supported by competent

evidence of record based on our review, we do not find the trial court’s

                                   - 12 -
J-A02033-16


conclusions granting shared custody to be unreasonable. Further, we do not

find that the trial court’s conclusions constitute error of law.      Therefore,

Mother is not entitled to relief on either of her first two issues.

      In her third issue, Mother complains that the trial court abused its

discretion or committed error of law by denying her motion for recusal.

When confronted with a recusal motion, a judge must conduct a two-tiered

analysis:

      First, whether the Justice would have a personal bias or interest
      which would preclude an impartial review. This is a personal and
      unreviewable decision that only the jurist can make. Second,
      whether his participation in the matter would give the
      appearance of impropriety. To perform its high function in the
      best way, justice must satisfy the appearance of justice.

Goodheart v. Casey, 565 A.2d 757, 764 (Pa. 1989) (citations, internal

quotation marks, italics and brackets omitted).       “The party who asserts a

trial judge must be disqualified bears the burden of producing evidence

establishing bias, prejudice, or unfairness necessitating recusal, and the

decision by a judge against whom a plea of prejudice is made will not be

disturbed except for an abuse of discretion.” Commonwealth v. Whitmore,

912 A.2d 827, 834 (Pa. 2006) (internal citations omitted).

      Mother argues that the trial judge’s relationship with one of Father’s

witnesses created an appearance of impropriety warranting recusal. Mother

does not allege any actual bias, prejudice, or unfairness on the part of the

trial judge.   In her brief, she suggests that the relationship between the




                                      - 13 -
J-A02033-16


judge and Father’s witness translates into the witness coming into court

“with more credibility than any other witness.” Mother’s Brief, at 45.

      The trial court addressed its denial of the recusal motion in both its

May 22, 2015 Opinion and its Rule 1925(a) Opinion. In the May 22, 2015

Opinion, the trial court explained:

      On March 20, approximately five (5) weeks after the February
      13, 2015 contempt hearing, and one (1) week before the
      scheduled custody hearing, Mother, through counsel, filed a
      Motion for Recusal. Even though the issue was placed on the
      record twice with no objection from counsel, Mother’s Motion
      requested the Court’s recusal due to his familiarity with [D. D-
      B]. The Motion alleged an appearance of impropriety because
      [D. D-B] had worked in the law firm as a paralegal to which the
      Court was of-counsel prior to being elected to the bench. It was
      alleged that because of her employment with the law firm, the
      [c]ourt “trusted her and values her opinion and had a special
      relationship.” Mother also accused the [c]ourt of failing to
      disclose information to his knowledge of [D. D-B] as an
      employee. However, after disclosing the familiarity, neither
      counsel asked for any additional information.

      Due to the eleventh-hour filing of Mother’s Motion for recusal,
      Father’s objection, the amount of time this case had been
      outstanding and the amount of involvement this [c]ourt had with
      the case prior to learning of [D. D-B]’s relationship with Father,
      this [c]ourt was placed in a difficult position, and decided to
      address the Motion prior to the commencement of the custody
      hearing on March 27, 2015.

      Before hearing argument from counsel on the Motion, the [c]ourt
      addressed the circumstances surrounding his familiarity with [D.
      D-B]. She was employed by the law firm for which [the trial
      judge] was of counsel, and had worked there for approximately
      one (1) year. [The trial judge] did not hire or supervise [D. D-
      B], and merely paid a pro rata share on rent and overall
      personnel expense, which included [D. D-B], as well as a
      number of other personnel in the office. After the law firm
      separate, [D. D-B] worked primarily for [the trial judge] and
      Geoffrey McInroy, Esquire. Since [the trial judge] was engaged

                                      - 14 -
J-A02033-16


       in campaigning during this time, there was not a lot of time
       spent in the office which would have led to any “special
       relationship” as alleged in the Motion.

       [D. D-B] has two (2) children, one of which is autistic, and
       during her employment with [the trial judge] and [Attorney]
       McInroy, she had an issue with the father of her children and
       wanted to file for custody in Northumberland County. She had
       filled out the paperwork in her capacity as paralegal, and had
       asked if one of the attorneys could review and sign it for her.
       After discussion, it was determined that [the trial judge’s]
       schedule at the time was more flexible that Attorney McInroy’s.
       Therefore, the [c]ourt reviewed and signed the pleadings, and
       also agreed to represent her interest relative to the children if
       necessary. [The trial judge] appeared with [D. D-B.] before the
       master in Northumberland County twice wherein an agreement
       was reached regarding the child’s medication.

       The [c]ourt stated that its involvement with [D. D-B]’s custody
       case was primarily done because her issues with the children
       were causing problems and disturbances within the law firm.
       The [c]ourt stated that its involvement with [D. D-B], as a
       witness to a custody action and not a party, would not cause her
       testimony to be given and more or less credibility than any other
       witness.[7]

____________________________________________


7
  Again, Mother contends the relationship between the trial judge and D. D-B
bolsters the witness’ credibility. However, the trial judge, noting the tension
in the office resulting from D. D-B’s custody matter, commented:

       So in the spirit of full disclosure, I don’t think that’s a – I mean,
       the negativity that came out of that, and I know she wanted to
       come to the county afterwards and it was an offer I couldn’t
       make to her, and I told her because her personal life had
       disrupted her professional responsibilities. So, if anything, she
       might have ill-will to me. I don’t know. I just wanted to give
       you that full setup.     I didn’t want you to think this was some
       sort of wonderful working relationship; it was a strained one at
       that.

N.T., 3/27/15, at 24.



                                          - 15 -
J-A02033-16


     In support of Mother’s motion for recusal, [Mother’s] counsel
     made arguments based on a number of assumptions that come
     from working in a law firm. There were no facts articulated that
     would support an appearance of impropriety by the [c]ourt.
     Even after the [c]ourt explained the stress and tension that [D.
     D-B]’s employment caused the law firm, [Mother’s] counsel
     continued to argue the existence of an appearance of
     impropriety based on her employment there. [Mother’s] counsel
     also argued that [D. D-B] was “essentially” a party to the case
     because of her relationship with Father. However, testimony
     revealed that even though Father intends to marry [D. D-B] in
     the future, she is still going through a divorce. Further, the
     parties do not live together, and there was no testimony of any
     plans to do so in the immediate future.

     On the other hand, Father’s counsel was adamantly opposed to
     the recusal and did not believe there was a legitimate basis for
     the request. Father’s counsel argued that the only reason [D. D-
     B] became involved in the custody dispute was by necessity, and
     would strictly be a witness for the custody exchanges, or lack
     thereof, between the parties. Father does not drive, and after
     the second PFA, Father’s contact with Mother was restricted, and
     he was forced to rely on third-party transports for the custody
     exchange. Therefore, [D. D-B] was put into a position where
     she was the one who had direct contact with Mother during the
     custody exchange, or was the person attempting to contact
     Mother when she failed to appear for a custody exchange.

     Father’s counsel’s primary concern was the further delay a grant
     of the recusal would be. The complaint was filed on June 10,
     2014, and it took approximately nine (9) months to get it to a
     hearing based on the number of continuances, and collateral
     issues involved. Since Dauphin County only has three (3) judges
     to hear the high volume of family law matters, counsel was
     concerned that another judge would not have adequate time to
     review the lengthy history of the case.       The difference in
     perception between the parties is a major dispute in the case,
     and necessitates the need to resolve it quickly as opposed to
     kicking it down the line further.

     Mother’s Motion for Recusal was denied because the [c]ourt does
     not believe there is an appearance of impropriety with regard to
     [D. D-B]. The [c]ourt has been involved in this case long before
     her involvement with Father became known at the February 3,

                                  - 16 -
J-A02033-16


       2015 PFA hearing. It was disclosed to counsel at that time who
       agreed there was no conflict. The issue was raised again at the
       February 13, 2015 contempt hearing and counsel again agreed
       there was no conflict. At no time did counsel inquire further as
       to the [c]ourt’s familiarity with one of Father’s witnesses. It
       appears this was just another one of Mother’s attempts to delay
       the custody hearing and control Father’s custodial time with
       [Child].

T.C.O., 5/22/15, at 12-15 (footnotes omitted).

       In its Rule 1925(a) Opinion, the trial judge reiterated his position that

denial of the motion was appropriate and cited Pa.R.C.P. 1915.4, which calls

for prompt disposition of custody cases. Rule 1925(a) Opinion, 7/17/15, at

1-5.   The trial court also recognized the limited testimony offered by the

witness in question and stated her testimony “was not a driving factor for

the ultimate decision reached by the [c]ourt.” Id. at 5.8

       Having reviewed the record and the reasons stated by the trial court,

we cannot see that the trial judge’s conduct would create a perception in

reasonable minds that there was an appearance of impropriety.9         The trial

judge thoroughly explained his prior relationship to D. D-B and why that

____________________________________________


8
  The testimony offered by the witness spanned 20 pages of the 371 pages
of testimony from the March 27 and April 30, 2015 proceedings. Her
testimony focused, as the trial court suggested, on her involvement in the
custody exchanges. N.T., 4/30/15, at 192-211.
9
  “The test for appearance of impropriety is whether the conduct would
create in reasonable minds a perception that the judge violated this Code or
engaged in other conduct that reflects adversely on the judge's honesty,
impartiality, temperament, or fitness to serve as a judge.” Pa. Code of
Judicial Conduct, Canon 1, Rule 1.2, cmt 5.



                                          - 17 -
J-A02033-16


relationship would have no effect on his decision in this case.         This was

especially so given the witness’s limited role in these proceedings. Cognizant

of the burden borne by the proponent of a motion to recuse and our

standard of review, we find no abuse of discretion on the part of the trial

court in denying Mother’s motion. We also note “[a] party seeking recusal

or disqualification [is required] to raise the objection at the earliest possible

moment, or that party will suffer the consequence of being time barred.” In

re Lokuta, 11 A.3d 427, 437 (Pa. 2011) (emphasis added) (quoting

Goodheart, 565 A.2d at 763). Although not the basis for the trial court’s

decision to deny Mother’s motion, Mother’s delay in raising this recusal issue

is troubling. When advised by the trial court at the February 13 conference

of the trial judge’s prior relationship to D. D-B, Mother did nothing further to

inquire about the relationship until precipitously close to the March 27

proceedings when Mother filed her motion. It was incumbent upon Mother

to satisfy herself as to the extent of this relationship when first informed of it

by the trial court.   Delay in raising the issue does not weigh in Mother’s

favor. Mother’s third issue fails.

      In her fourth issue, Mother contends the trial court abused its

discretion or committed error of law by “considering evidence not of record

in the custody proceedings” in deciding to award joint legal and physical

custody to Mother and Father.        Specifically, Mother argues the trial court

“opine[d] that he is concerned with Mother’s mental health and her need for


                                      - 18 -
J-A02033-16


counseling and psychotropic medication.”       Mother’s Brief, at 57.   Mother

asserts the trial court “considered and relied upon Mother’s need for

counseling, the PFA transcript and Father’s unfounded statements with no

other evidence in support thereof.” Id. In support of her argument, Mother

relies on cases in which the trial court used the results of independent

Internet research in making its determinations.       We find the cited cases

inapposite.    For instance, in M.P. v. M.P., 54 A.3d 950, 955 (Pa. Super.

2012), this Court determined the trial court erred by relying on its own

Internet research regarding the Hague Convention and the possible lack of

comity in Ecuador.     Likewise, in Ney v. Ney, 917 A.2d 863 (Pa. Super.

2007), the trial court erred by using the results of its own Internet job

search to discount father’s claim that his reduction in earnings was

involuntary.    Here, the trial court did not conduct independent research.

Rather, it used testimony presented in proceedings involving Mother and

Father before the trial court. As the trial court explained:

      In making a determination of child custody, the [c]ourt must
      consider the sixteen (16) enumerated factors of 23 Pa.C.S.A. §
      5328. One of those factors is “any other relevant factor.” In
      this case, Mother testified to custody issues in both PFA
      proceedings. She also testified as to the alleged incident that
      led to the filing of the second PFA during the custody hearing.
      This [c]ourt heard all of the testimony in both PFA proceedings,
      and both days of the custody hearing. As Mother’s testimony
      during both PFA proceedings related to custody, this [c]ourt
      considered that testimony as part of “any other relevant factor.”
      In addition, the testimony from the PFA proceedings, combined
      with the testimony in all of the custody proceedings, was
      relevant to the overarching issue of this case — Mother’s mental
      health status.     Father has raised this issue in numerous

                                     - 19 -
J-A02033-16


      pleadings, and on the record in a number of proceedings. The
      [c]ourt cannot ignore a significant factor that has been raised by
      a party. Therefore, the [c]ourt properly considered all of the
      evidence between the parties in making a determination of child
      custody.

Rule 1925(a) Opinion, 7/17/15, at 8.          Further, at the March 27, 2015

hearing, when reference was made to a contempt hearing, the following

exchange took place between Mother’s counsel and the trial court:

      Mother’s Counsel: [J]ust to clarify. In making your decision
      with regards to custody are you considering the testimony
      throughout all of the proceedings that – or are we starting from
      today and then April 30th, was my understanding, or –

      Trial Court: Well, generally it’s primarily focused on what’s
      presented here. But I can’t tell you that I’m going to be able to
      block out procedures and testimony that occurred at the earlier
      proceedings . . . . [] I can’t tell you I’m not going to remember
      something from and earlier proceeding.

      Mother’s Counsel: [T]hat’s fine, Your Honor. I was just trying to
      be clear so I knew where we were going. Thank you, Your
      Honor.

      Trial Court: You’re welcome.

N.T., 3/27/15, at 66-67.

      Mother’s counsel did not register any objection to the trial court’s

expectation of considering testimony from earlier proceedings and, in fact,

stated, “That’s fine, Your Honor.”   Id. at 67. Even if not waived for lack of

objection, we nevertheless find no abuse of discretion or error of law in the

trial court’s consideration of the challenged evidence. Mother’s fourth issue

does not provide any basis for relief.




                                     - 20 -
J-A02033-16


     In her fifth and final issue, Mother claims the trial court abused its

discretion or committed error of law by “making adverse conclusions against

Mother” and “rejecting evidence of abuse” in awarding shared custody.

Despite identifying the issue in her Statement of Questions Involved, Mother

did not address the issue in her brief.      Therefore, it is waived.   Pa.R.A.P.

2119(a); Green v. Green, 69 A.3d 282, 285 n.3 (Pa. Super. 2013).

     Order affirmed.

     Judge Panella joins this memorandum.

     Justice Fitzgerald concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2016




                                    - 21 -
