J-S44002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 T.L.L. A/K/A T.L.P.                     :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 R.F.P.                                  :
                                         :
                     Appellant           :   No. 956 EDA 2018

                    Appeal from the Order March 22, 2018
    In the Court of Common Pleas of Philadelphia County Family Court at
                              No(s): OC1000744


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JULY 27, 2018

     R.F.P. (Father) appeals, pro se, from the order denying his petition to

modify custody of his three minor children, R.P., S.P., and E.P. After careful

review, we affirm.

     The trial court summarized its findings of fact as follows:

     Father and [T.L.L. (a.k.a. T.L.P.), (Mother)] share physical and
     legal custody of three minor children—R.P., S.P, and E.P. The two
     younger children follow a weekly shared physical custody
     arrangement with the custodial exchange between parents on
     Friday. The eldest child[, R.P.,] has a slight deviation in the
     shared physical custody arrangement.           R.P. spends every
     Thursday night to Friday night with Mother. Accordingly, when
     R.P. is with [] Father the custodial exchange to Mother is Thursday
     night. This arrangement has been in place since the order dated
     December 22, 2015, which was affirmed by the Superior Court in
     T.L.L., a/k/a T.L.P. v. R.F.P., No. 285 EDA 2016.

     Father requested a re-establishment of the fifty/fifty custodial
     arrangement with all three children, thus eliminating R.P.’s
     Thursday night to Friday night custodial time with Mother during
     Father’s custodial week.     Father asserted in support of a
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      modification: (1) R.P. is deprived of fifteen [percent] of his weekly
      custodial time with Father; (2) the purpose of the December 22,
      2015 modification, for R.P. to go to counseling, is not being
      fulfilled, and (3) R.P. is “thirteen years old now, and as an
      adolescent, he needs more of his father in his life.”          Father
      testified credibly that he teaches his children values, he helps the
      children with their homework, he takes them to visit extended
      family, and he encourages his children to do things that are in
      their best interest.

      Mother sought primary physical custody. In her petition Mother
      assert[ed] that Father is emotionally abusive to the three children.
      Mother gave opinion testimony and described conversation she
      had with the children to support her petition, but the allegation in
      the petition was not substantiated at trial. Mother testified
      credibly about R.P.’s counseling. R.P.’s initial contact with the
      counselor was for aggressive behavior and ‘skin picking.’ R.P.’s
      aggression has greatly improved, but the ‘skin picking’ continues.
      R.P.’s next counseling sessions were for academic issues, and to
      focus on getting R.P. in a better routine at home. R.P. is currently
      on a waiting list with the University of Pennsylvania for the ‘skin
      picking’ issue.

      One joint exhibit regarding R.P.’s diagnoses for treatment,
      treatment dates, and treatment plan was submitted at trial.

Trial Court Opinion, 4/30/18, at 2-3.

      Father originally filed a motion for recusal of the trial judge and a

petition to modify custody on June 30, 2017. Mother filed a petition to modify

custody on March 5, 2018, asking for full custody of the children. Father filed

his answer to Mother’s petition on March 13, 2018. After a trial held on March

19, 2018, the trial court denied Father’s motion for recusal and held the

custody matter under advisement.        Subsequently, the trial court denied

Father’s and Mother’s respective petitions, leaving the custodial arrangement

unchanged from the December 22, 2015 custody order (the “custody order”).

Father filed a timely appeal and a Pa.R.A.P. 1925(b) concise statement of


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errors complained of on appeal. Father presents the following issues for our

review:

      1. Did the [trial court] impermissibly permit [Mother] to introduce
         inadmissible hearsay in the form of alleged statements of the
         parties’ children?

      2. Did the [trial court] impermissibly order the parties to disobey
         the law regarding parental communication, and to rely instead
         on [the trial court’s] own personal beliefs regarding parental
         communication?

Appellant’s Brief, at 3.

      Our standard of review is as 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.

A.J.B. v. A.G.B., 180 A.3d 1263, 1269-70 (Pa. Super. 2018) quoting C.R.F.,

III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). As this Court explained in

Ketterer v. Seifert, 902 A.2d 533 (Pa. Super. 2006), “[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.” Id. at 540.




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       The paramount concern in child custody matters is the best interests of

the children.    McMillen v. McMillen, 602 A.2d 845, 846 (Pa. 1992).           “A

modification of custody is not warranted merely because one parent is

unhappy with the existing arrangement.                Thus, we repeatedly have

emphasized that a party requesting modification must prove that the

alteration of an existing custody arrangement is in the child’s best interest.”

Jackson v. Beck, 858 A.2d 1250, 1252 (Pa. Super. 2004). In considering

custody determinations, the trial court should consider all relevant factors.

See 23 Pa.C.S. § 5328 (a)(1)—(16).1

       Father first argues the admission of the children’s out-of-court

statements to Mother constituted inadmissible hearsay. A trial court’s rulings

on the admission of evidence are within its sound discretion. Phillips v. Lock,

86 A.3d 906, 920 (Pa. Super. 2014).              Thus, a court’s decision to admit

evidence will not be overturned “absent an abuse of discretion or

misapplication of law.” Id. For a ruling to constitute reversible error, it must

have been harmful or prejudicial to an appellant. Id. Hearsay is an out-of-

court statement offered to prove the truth of the matter asserted. Pa.R.E.

801(c).    As a general rule, hearsay is inadmissible, because it lacks the




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1 This section lists factors such as the need for stability and continuity in the
children’s education, family life, and community life; the child’s sibling
relationships; the well-reasoned preferences of the children; the level of
conflict between the parents, along with their willingness and ability to
cooperate with one another; and any other relevant factor.

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guarantees of trustworthiness fundamental to our system of jurisprudence.

Commonwealth v. Rush, 605 A.2d 792, 795 (Pa. 1992).

      Mother, when asked why she sought full custody of her children, stated

her opinion that Father “has moments that are irregular, and above the norm

when it comes to rage. I think his expectations of the children are beyond

that of a typical father.” N.T. Trial, 3/19/18, at 44. Mother based this opinion

on things the children “come back and tell me.” Id. at 44-45. Over Father’s

objections, the trial court permitted Mother to testify about the out-of-court

statements the children allegedly made to her regarding Father.

      This testimony was plainly hearsay. However, as the trial court stated,

“[s]ince the statements were not corroborated by later testimony [from the

children,] the trial court gave no weight to the statements, nor did the trial

court consider the statements in denying Father’s petition to modify custody.”

Trial Court Opinion, 4/30/18, at 12.      Therefore, because Father was not

prejudiced, the court’s error was harmless. See In re M.T., 607 A.2d 271,

281 (Pa. Super. 1992) (admission of hearsay statements of children was

harmless error where statements of children did not contribute to trial court’s

decision); see also Knowles v. Levan, 15 A.3d 504, 507 (Pa. Super. 2011)

(in order for ruling on admissibility of evidence to constitute reversible error,

it must have been harmful or prejudicial to complaining party).

      Father next argues the trial court “impermissibly ordered the parties to

disobey the law regarding parental communication, and to rely instead on [the

trial court’s] own personal beliefs regarding parental communication.”

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Appellant’s Brief, at 20 (capitalization omitted). Because Father’s petition to

modify custody was denied, the trial court upheld the custody order; thus, his

second argument stems from the language therein, which states, “the parties

are not to strive for ‘minimal cooperation’ but rather full co-parenting skills.”

Custody Order, 12/22/15, at 3.

       Coordinating shared custody requires a “minimal degree of cooperation

between the parents.” B.C.S. v. J.A.S., 994 A.2d 600, 603 (Pa. Super. 2010).

A minimal degree of cooperation does not

       translate into a requirement that the parents have an amicable
       relationship. Although such a positive relationship is preferable,
       a successful joint custody arrangement requires only that the
       parents be able to isolate their personal conflicts from their roles
       as parents and that the children be spared whatever resentments
       and rancor the parents may harbor.

Id. (quoting In re Wesley J. K., 445 A.2d 1243, 1249 (Pa. Super. 1982)).

Further, as noted by this Court, the rule “requiring parents have a minimal

degree of cooperation can be found [within the current child custody statute,2]

at [section 5328](a)(13), requiring that trial courts consider, among other

things, the level of conflict between the parties and the willingness and ability

of the parties to cooperate with one another.” J.C. v. J.W., 179 A.3d 617

(Pa. Super. 2017).




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2   See 23 Pa.C.S. §§ 5321-5340.

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      Regardless, this issue has already been decided in a prior decision of

this Court, and therefore Father is collaterally estopped from raising it again

in this matter. Collateral estoppel, also known as issue preclusion

      operates to prevent questions of law or issues of fact which have
      once been litigated and adjudicated finally in a court of competent
      jurisdiction from being relitigated in a subsequent suit. Collateral
      estoppel is applicable when: (1) [a]n issue decided in a prior
      action is identical to one presented in a later action; (2) [t]he prior
      action resulted in a final judgment on the merits; (3) [t]he party
      against whom collateral estoppel is asserted was a party to the
      prior action, or is in privity with a party to the prior action; and
      (4) [t]he party against whom collateral estoppel is asserted had a
      full and fair opportunity to litigate the issue in the prior action.

Nelson v. Heslin, 806 A.2d 873, 876-77 (Pa. Super. 2002). In 2016, Father

argued against this same language in his appeal to this Court, asking

“[w]hether the [trial] judge impermissibly relied on [its] own personal beliefs

with respect to parental communication and, in so doing . . . expressly refused

to follow this court’s binding standard of ‘minimum of communication’ between

custodial parties.” Appellant’s Prior Brief, 7/19/16, at 3, quoted in T.L.L. v.

R.F.P., 285 EDA 2016 (Pa. Super., filed 2/14/17). Relying on the trial court’s

reasoning that the communication requirements were necessary to prevent

the 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,” this Court

found Father’s claim lacked merit. T.L.L., at *3.

      Father is now precluded from raising this issue.       Father contests the

identical language of the same custody order before this Court for a second

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time. The previous decision of this Court was decided on the merits, and

resulted in a final judgment that denied Father relief for this specific issue.

Father was, of course, a party to the prior action, and had a full and fair

opportunity to litigate this issue.3 Nelson, supra.

       Father also argues in his brief that the court erred in denying his motion

to recuse the trial judge, the Honorable Holly J. Ford, urging this Court to

order her recusal because of “impropriety.” Appellant’s Brief, at 15-19. Father

failed to include this claim in his court-ordered Rule 1925(b) statement, and

therefore it has not been preserved for our review. See Yates v. Yates, 963

A.2d 535, 542 (Pa. Super. 2008) (finding father’s argument waived for failure

to include it in Rule 1925(b) statement); see also Pa.R.A.P. 1925(b)(4)(vii).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/27/18




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3 Even if the issue had not been previously litigated and decided, the language
of the December 22, 2015 custody order hardly amounts to the judge
imposing her own personal beliefs upon Father. Rather, it is a goal of the trial
court for the parents to “strive” for “full co-parenting skills.” There is no
evidence in the record to suggest that Father was at all aggrieved by this
language in the order.

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