J-S60043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    N.F. N/K/A N.H.                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellant              :
                                               :
                  v.                           :
                                               :
    B.F.                                       :
                                               :
                        Appellee               :   No. 855 MDA 2018

                     Appeal from the Order Entered May 16, 2018
                 in the Court of Common Pleas of Huntingdon County
                         Civil Division at No(s): 2013-00148

BEFORE:         SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED NOVEMBER 30, 2018

           N.F. n/k/a N.H. (Mother) appeals from the order entered May 16, 2018,

in the Court of Common Pleas of Huntingdon County, which awarded primary

physical custody of her sons, G.F., born in June 2011, and C.J.F., born in July

2012 (collectively, Children) to their father, B.F. (Father).1 We affirm.

           We summarize the relevant facts and procedural history of this case as

follows. Mother and Father are former spouses who married in August 2008.

Mother filed a complaint in divorce in January 2013, which included a count

requesting custody of Children.          The parties agreed to a memorandum of

understanding, entered as an order of court on April 2, 2013, pursuant to

____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1C.J.F. is not Father’s biological son. Although C.J.F. was born during Mother’s
marriage to Father, and is therefore Father’s child legally, the parties agree
that he is the biological son of J.M., with whom Mother had an extramarital
affair.
J-S60043-18



which Father received partial physical custody of Children each weekend. The

memorandum provided that Father would have custody from 6:00 p.m. Friday

until 5:30 p.m. Monday, except for the second weekend of each month, during

which Father would have custody from 5:00 p.m. Sunday until 5:30 p.m.

Monday.2 The order did not address legal custody, but Father and Mother

shared legal custody pursuant to a series of interim court orders entered prior

to the memorandum of understanding.              The trial court entered a divorce

decree in October 2015.

       On March 22, 2017, Mother filed a petition to modify custody. The trial

court ordered the parties to mediation, where they entered into an additional

memorandum of understanding making slight changes to the existing custody

arrangement. The court entered the memorandum as an order of court on

June 2, 2017.

       Relevant to this appeal, Mother filed a second petition for modification

of custody on March 2, 2018. Therein, she averred that C.J.F., who was five

years old at the time, had disclosed being the victim of sexual abuse by his

paternal cousin, C.M.F., who was twelve years old.              She averred that


____________________________________________


2The order provided that the parties would share physical custody equally if
Father was laid off or his work schedule changed such that he worked daylight
hours. In that case, Father would have custody from 5:00 p.m. every other
Sunday until 5:00 p.m. the following Wednesday. Immediately after that
Wednesday, Father would have custody from 5:00 p.m. Friday until 5:00 p.m.
Sunday. By the time of the hearing in this matter, the parties were operating
on a shared physical custody schedule.



                                           -2-
J-S60043-18



Children’s paternal grandparents babysat them while Father was at work, and

that the abuse occurred while Children were in the paternal grandparents’

care. She requested that Father have custody only when he is not working

and able to care for Children himself.3

       The trial court conducted a hearing on Mother’s petition on May 1, 2018.

The court first heard the testimony of Mother. Mother focused her testimony

on the aftermath of C.J.F.’s sexual abuse allegations. She criticized Father’s

response to the allegations, saying that he and his family do not believe C.J.F.

N.T., 5/1/2018, at 16. She admitted that Children and Youth Services (CYS)

deemed the allegations unfounded after an investigation but emphasized that

an investigation by the State Police remains ongoing. Id. at 37.

       Concerning her own response to C.J.F.’s allegations, Mother described

an incident that took place following Children’s baseball game the weekend

prior to the hearing. The game occurred during Father’s period of custody and

Father’s brothers, Mi.F., who is C.M.F.’s father, and Ma.F., were present. After

the game, as the Children were playing in a nearby playground, Mother asked

Father to tell Mi.F. to leave. Id. at 43. This sparked an argument during

which Mother began yelling while Father loaded Children into his car. Id. at

44. Mother then followed Father’s car for an unspecified distance and called

____________________________________________


3 Mother also filed an emergency petition for special relief requesting that
Children have no contact with their paternal grandparents pending an
investigation of C.J.F.’s allegations. The trial court scheduled a hearing on
Mother’s petition but the record does not reveal the existence of an order
granting or denying her requested relief.

                                           -3-
J-S60043-18



the State Police, sending them to Father’s home to ensure that Children were

safe. Id. at 45.

       Mother further testified that she created a post on Facebook warning

that “people needed to keep their kid away from” C.M.F. Id. at 39. Mother

claimed that her post was a “general comment,” and did not provide

identifying information for C.M.F. Id. at 43. However, when confronted with

the text of the post on cross-examination, she admitted that she described

C.M.F. as an “evil child” and did in fact provide his bus number, grade, and

school.    Id. at 52-53.      Father’s counsel also questioned Mother about a

voicemail that C.J.F. left Father using Mother’s phone, during which he stated

that he did not want to visit Father anymore.4 Mother claimed that Children

know the password to her phone and that they have access to it “all the time.”

Id. at 69-70. She denied that she was present during the phone call or knew

that it had taken place.       Id. at 94-95.     However, she insisted that C.J.F.

demands frequently that he no longer visit Father. Id. at 95.

       The trial court then heard the testimony of Father. Father’s testimony

focused on his belief that Mother filed her petition for modification of custody

out of spite rather than concern for Children’s safety. Father testified that he

cooperated with Mother to address C.J.F.’s allegations by alerting CYS and

Mi.F. Id. at 105-06. He also agreed that the Children should stay away from

C.M.F. until the allegations were resolved.           Id. at 108.    However, he
____________________________________________


4The voicemail was not included in the certified record but its contents are
undisputed.

                                           -4-
J-S60043-18



complained that Mother began using the allegations as an excuse to request

that Children not spend time with him, their paternal grandparents, or C.M.F.’s

parents. Id.

      The trial court continued the custody hearing on May 15, 2018, during

which it heard further testimony from Father. Father expressed concern that

Mother may have caused C.J.F. to fabricate the allegations of sexual abuse.

Id. at 22-23. He explained that Mother made statements to him indicating

that she intended to take Children away and move in with her boyfriend in

Maryland. Id. at 28-30.

      Next, Mother presented the testimony of her boyfriend, M.S., and the

Children’s maternal step-grandfather, R.M., while Father presented testimony

from Mi.F. and Children’s paternal grandfather, F.F. Of significance here, Mi.F.

provided further testimony concerning the incident at the playground following

the Children’s baseball game. Mi.F. recalled that Mother threatened C.M.F.

during the incident, stating that C.M.F. “is gonna get what is coming to him,”

and “that it’s going to be on the news.” Id. at 80.

      Finally, Mother testified on rebuttal. During cross-examination, Father’s

counsel asked Mother whether she made the statements described by Mi.F.,

that C.M.F. would “get what is coming to him” and that it would be on the

news. Id. at 110. Mother denied that she made the statements. Id. Father’s




                                     -5-
J-S60043-18



counsel then confronted Mother with a video of the incident, recorded by Ma.F.

on his phone, proving that she said what Mi.F. described.5 Id. at 110-11.

       After hearing the testimony, the trial court announced that it would

award shared legal custody to both parties and award primary physical

custody to Father. The court awarded partial physical custody to Mother each

Wednesday from 4:00 p.m. until 8:00 p.m. and every other weekend from

4:00 p.m. Friday until 8:00 p.m. Sunday.         The court entered an order

memorializing this decision on May 16, 2018. Mother timely filed a notice of

appeal on May 23, 2018, along with a concise statement of errors complained

of on appeal.     The court entered a supplemental order including a holiday

schedule on May 29, 2018, and filed an opinion pursuant to Pa.R.A.P. 1925(a)

on June 25, 2018.

       Mother now raises the following claims for our review.

       ISSUE I. Whether or not [the trial c]ourt erred in finding that the
       best interest of [C]hildren would best be served by granting
       primary custody to Father?

       ISSUE II. Whether or not [the trial c]ourt erred by allowing
       testimony and the playing of a video and audio of [Mother] despite
       the fact that there was no testimony that said the video and audio
       was taped with consent of [Mother]?

       ISSUE III. Whether or not [the trial c]ourt erred by making a
       finding after reviewing the file from [CYS] that this abuse did not
       occur?


____________________________________________


5 Mother’s counsel objected to the playing of this video as being a violation of
the Wiretap Act, 18 Pa.C.S. §§ 5701-5782. N.T., 5/15/2018, at 111. That
objection was overruled.

                                           -6-
J-S60043-18


     ISSUE IV. Whether or not [the trial c]ourt erred by allowing
     questions to be asked about text messages that [Mother] denied
     ever making?

Mother’s Brief at 4 (suggested answers omitted).

     We consider Mother’s claims mindful of our well-settled 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.

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

     “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S. § 5328(a).

     (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.




                                     -7-
J-S60043-18


          (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)
          (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.

          (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

                                    -8-
J-S60043-18


            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.

23 Pa.C.S. § 5328(a).

      Here, in its analysis of these factors, the trial court concluded that

subsections 5328(a)(1), (2), (4), (8), (9), (10), and (13) weighed in favor of

Father, subsection 5328(a)(6) weighed in favor of Mother, and subsections

5328(a)(3), (5), (7), (11), (12), (14), and (15) were neutral.              N.T.,

5/15/2018, at 113-17.     With respect to subsection 5328(a)(16), the court

chastised Mother for her lack of candor and ordered that a transcript of the

hearing be sent to the District Attorney’s office due to her possible perjury.

Id. at 112, 117. The court expressed that it could not determine whether

C.M.F. had sexually abused C.J.F., or whether Mother had caused C.J.F. to

fabricate the allegations. Id. at 117. However, it concluded that Mother was

attempting to mentally condition the Children and turn them against Father.

Id. at 113, 115. The court emphasized C.J.F.’s phone call to Father, stating,

“[t]he fact that [Mother] had a five-year-old call [Father] and tell [Father] that

[C.J.F.] did not want to go visit [Father] is outrageous. And I firmly believe,

based on my judge of credibility, that [Mother] had [C.J.F.] do that.” Id. at




                                      -9-
J-S60043-18



115. It also expressed concern that Mother’s life was unstable and that she

was struggling to regulate her emotions. Id. at 114, 116.

      On appeal, Mother’s first claim is that the trial court erred by concluding

that it would be in the Children’s best interests to award primary physical

custody to Father. Mother argues that the court was biased against her and

challenges its factual findings with respect to subsections 5328(a)(1), (2), (4),

(8), (9), (10), (13), and (14). Mother’s Brief at 8, 12-20. Additionally, she

argues that the court’s findings lacked sufficient detail, such that it failed to

consider all of the factors and delineate the reasons for its decision. Id. at

18-23.

      After careful review, it is clear that the record supports the trial court’s

findings. There was no evidence presented during the hearing that Father

allowed the Children to have any contact with C.M.F. after becoming aware of

abuse allegations. Despite this, Mother engaged in unreasonable and spiteful

behavior, which disrupted Father’s custody of the Children and targeted his

family. During the incident at the playground, Mother instigated an argument,

followed Father’s car, and then called the State Police simply because Mi.F.

was present.   Mother also identified C.M.F. and attacked him by name on

Facebook. Mother’s motives in taking these actions appear to have been less

than sincere, as demonstrated by C.J.F.’s phone call to Father to say that he

no longer wants to visit him. This Court’s review of the record confirms the

trial court’s conclusions. Mother appears to have been dishonest with the trial


                                     - 10 -
J-S60043-18


court at least twice, and it was well within the court’s discretion to disregard

much if not all of her testimony. See V.B., 55 A.3d at 1197.

       While Mother contends that the trial court failed to conduct an adequate

analysis of the subsection 5328(a) factors, we disagree. Our review reveals

that the court discussed all of the factors and explained its reasoning as to

each in a clear and concise manner.6 As this Court has stated, trial courts are

not obligated to discuss the subsection 5328(a) factors in any specific amount

of detail.   Rather, “all that is required is that the enumerated factors are

considered and that the custody decision is based on those considerations.”

M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013). Mother’s first claim

merits no relief.

       In her second claim, Mother argues that the trial court erred by allowing

Father’s counsel to play, and question her about, the video of the incident at

the playground following Children’s baseball game. Mother contends that the

court erred because there was no testimony that Mother consented to the

videotaping, making it a violation of Pennsylvania’s Wiretap Act, 18 Pa.C.S.

§§ 5701-5782. Mother’s Brief at 8-9, 24-26. She asserts that the tape was

inadmissible because the Wiretap Act prohibits the intentional use or

disclosure of oral communications intercepted in violation of its provisions.

Id. at 25-26 (citing 18 Pa.C.S. § 5703(2)).


____________________________________________


6The trial court did not include a separate analysis of subsection 5328(a)(2.1),
but it is clear that the court considered the parties’ involvement with CYS.

                                          - 11 -
J-S60043-18


      Mother’s challenge requires us to interpret the Act’s statutory language.

Thus, our standard of review is de novo and our scope of review is plenary.

Bayview Loan Servicing, LLC v. Lindsay, 185 A.3d 307, 311 (Pa. Super.

2018). When this Court interprets a statute, we do so mindful of the following

principles.

      [O]ur objective is to ascertain and effectuate the intention of the
      General Assembly[,] and that [e]very statute shall be construed,
      if possible, to give effect to all of its provisions. This Court may
      not ignore the language of a statute, nor may we deem any
      language to be superfluous. Governing presumptions include that
      the General Assembly intended the entire statute at issue to be
      effective and certain, and that the General Assembly did not
      intend an absurd result.

Id. at 312 (citations and quotation marks omitted).

      In addition, to the extent this claim implicates the trial court’s discretion

in allowing the admission of evidence, our standard of review is as follows.

      When we review a trial court ruling on admission of evidence, we
      must acknowledge that decisions on admissibility are within the
      sound discretion of the trial court and will not be overturned
      absent an abuse of discretion or misapplication of law. In addition,
      for a ruling on evidence to constitute reversible error, it must have
      been harmful or prejudicial to the complaining party.

      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied, or
      the judgment exercised is manifestly unreasonable, or the result
      of partiality, prejudice, bias or ill-will, as shown by the evidence
      or the record, discretion is abused.

Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (quoting Stumpf v.

Nye, 950 A.2d 1032, 1035–36 (Pa. Super. 2008), appeal denied, 962 A.2d

1198 (Pa. 2008)).


                                      - 12 -
J-S60043-18


      The Wiretap Act provides as follows, in relevant part.

      Except as otherwise provided in this chapter, a person is guilty of
      a felony of the third degree if he:

            (1) intentionally intercepts, endeavors to intercept, or
            procures any other person to intercept or endeavor to
            intercept any wire, electronic or oral communication;

            (2) intentionally discloses or endeavors to disclose to
            any other person the contents of any wire, electronic
            or oral communication, or evidence derived
            therefrom, knowing or having reason to know that the
            information was obtained through the interception of
            a wire, electronic or oral communication; or

            (3) intentionally uses or endeavors to use the
            contents    of    any    wire, electronic  or   oral
            communication, or evidence derived therefrom,
            knowing or having reason to know, that the
            information was obtained through the interception of
            a wire, electronic or oral communication.

18 Pa.C.S. § 5703.

      As Mother contends, the Wiretap Act makes it a criminal offense for a

person to disclose or use intentionally the contents of an oral communication

when he or she knows or has reason to know the information was obtained

through the interception of that communication. See id. In addition, with

limited exception, the Wiretap Act provides that “no person shall disclose the

contents of any wire, electronic or oral communication, or evidence derived

therefrom, in any proceeding in any court, board or agency of this

Commonwealth.”       18 Pa.C.S. § 5721.1(a)(1).      The Wiretap Act permits

interception of oral communications “where all parties to the communication

have given prior consent to such interception.”        18 Pa.C.S. § 5704(4).

                                     - 13 -
J-S60043-18


Further, of particular significance here, the Wiretap Act defines “oral

communication” as “[a]ny oral communication uttered by a person possessing

an expectation that such communication is not subject to interception under

circumstances justifying such expectation.” 18 Pa.C.S. § 5702.

      In the instant matter, we observe that there is at least some testimony

suggesting that Mother consented to the videotaping of the incident at the

playground. Mother testified that she noticed M.F.2 begin to videotape her as

the events unfolded. N.T., 5/1/2018, at 44 (“As [Father] loaded the boys into

the car …. His oldest [brother] started recording me on his phone…. I said,

‘You’re not helping him.    I don’t want this for my kids.’”).     However, she

continued to escalate the incident and there is no indication in the record that

she asked M.F.2 to stop.

      Even if Mother did not consent to the videotaping, the trial court still did

not commit legal error by allowing Father’s counsel to play the tape and

question Mother about its contents. As we observed supra, the Wiretap Act

applies to oral communications made when the speaker has “an expectation

that such communication is not subject to interception under circumstances

justifying such expectation.” 18 Pa.C.S. § 5702; see also Commonwealth

v. Dewar, 674 A.2d 714, 718 (Pa. Super. 1996) (“[T]he Act requires that the

person uttering the words [has] a justifiable expectation that such words are

not intercepted, using similar principles employed to determine whether the

utterer had an expectation of privacy.”). Under the circumstances present


                                     - 14 -
J-S60043-18


here, it is clear that Mother had no justifiable expectation that her statements

were not subject to interception. Mother made her statements in or near a

public playground and parking lot, with at least five other people, including

Children, Father, and Father’s brothers, present and listening to her. Nothing

about this situation would suggest that Mother intended her statements to be

private or that M.F.2 violated the Wiretap Act by recording them. No relief is

due.7

        Next, Mother argues that the trial court erred by making a finding that

C.M.F. did not sexually abuse C.J.F. after reviewing the CYS file and C.J.F.’s

interview at the Child Advocacy Center. Mother complains that the court made

this finding “prior to the hearing” before it had the opportunity to hear the



____________________________________________


7 We observe that the Wiretap Act defines “intercept,” in part, as “[a]ural or
other acquisition of the contents of any wire, electronic or oral communication
through the use of any electronic, mechanical or other device.” 18 Pa.C.S.
§ 5702. The Act exempts from its definition of “electronic, mechanical or other
device” any telephone “furnished to the subscriber or user by a provider of
wire or electronic communication service in the ordinary course of its business,
or furnished by such subscriber or user for connection to the facilities of such
service and used in the ordinary course of its business[.]” Id. Thus, at first
glance, the Wiretap Act did not prohibit M.F.2 from recording Mother because
he did so using his phone. We note, however, that the fact that M.F.2 recorded
Mother using his phone’s videotaping function excluded him from the Act’s
telephone exception. See Commonwealth v. Smith, 136 A.3d 170, 177 (Pa.
Super. 2016) (concluding that the trial court erred when it ruled that the use
of a smartphone’s “voice memo” app did not constitute the use of a “device”
under the Wiretap Act where the smartphone “was not being used, by any
measure, as a telephone”).




                                          - 15 -
J-S60043-18


evidence.8 Mother’s Brief at 27-30. She admits that C.J.F. did not disclose

any sexual abuse during his interview, but emphasizes that C.J.F. “also did

not specifically state the abuse was made up…. [C.J.F.] did not confirm or

deny the actions of [C.M.F.].” Id. at 28.

       The record belies Mother’s claim. Before beginning the hearing, the trial

court made the following statement regarding its review of the CYS file.

             THE COURT: We are here for a pre-trial conference. I have
       the CYS file. I have reviewed the CYS file. I have also reviewed
       the [Child Advocacy Center] video in question, and I am going to
       return that to [CYS]. That will not be made part of this record.

            [Father’s counsel]: The only thing that I would like to be
       made a part of this record is the unfounded letter. I believe that
       would be appropriate.

             THE COURT: Well there is no question that I will make a
       note that it’s unfounded, but there is no need to call anyone from
       [CYS]. I have reviewed their entire record, and I believe that
       based on the record, there is no way that [Mother’s counsel] could
       prove what he was attempting to prove. That’s just -- it’s a matter
       of proof, and the proof is not there.

N.T., 5/1/2018, at 4.

       The trial court revisited this issue on two occasions during the hearing.

At the conclusion of the first day of testimony, the court stated, “I have not



____________________________________________


8 As discussed infra, the record shows that the court specifically declined to
make a finding during the hearing that the abuse did not occur. See N.T.,
5/15/2018, at 117. However, it later included such a finding in its opinion.
See Trial Court Opinion, 6/25/2018, at 3 (“[I]n this case we reviewed the
interview and determined that the abuse did not occur. This Court heard
absolutely no credible evidence regarding the allegations and to find otherwise
would have been error”).

                                          - 16 -
J-S60043-18


made a finding as to what happened regarding C.J.F.’s abuse allegations. I

have heard no evidence. There is no evidence whatsoever. And this is a court

of law, and I make my decisions based on evidence.” Id. at 133. Finally, at

the conclusion of the second day of testimony, the court stated as follows.

            There is no evidence that the abuse of [C.J.F.] at the hands
      of a 12-year-old occurred. However, I find it as likely that this
      was put in [C.J.F.’s] head by [Mother]. And I can’t make a finding
      that that happened just like I can’t make a finding abuse
      happened.

N.T., 5/15/2018, at 117.

      Thus, contrary to Mother’s argument, the trial court did not make a

finding regarding abuse prior to, or even during, the hearing.       The court

concluded that the parties would not be able to prove either way whether

C.M.F. had abused C.J.F., or whether the allegations were part of a scheme

by Mother to reduce Father’s custody.

      Moreover, it was not an abuse of discretion for the court to make this

finding after the conclusion of the hearing. The court was free to weigh the

evidence presented at the hearing and conclude that it did not demonstrate

that C.M.F. abused C.J.F., and we must defer to the court’s determination.

V.B., 55 A.3d at 1197. Even assuming for the sake of argument that the court

did abuse its discretion, the record demonstrates that Mother suffered no

prejudice, as the court awarded primary physical custody to Father even

before reaching this conclusion. Mother is not entitled to relief.




                                     - 17 -
J-S60043-18


      In her final claim, Mother asserts that the trial court erred by allowing

Father’s counsel to question her about text messages that she denied sending.

This claim derives from her cross-examination, during which Father’s counsel

presented her with copies of the messages containing insulting statements

allegedly sent to Father. Mother contends that, after she denied sending the

messages, “any questioning concerning said text messages should have

stopped.” Mother’s Brief at 10. She also complains that the court held the

messages against her, even though she denied sending them, which proves

that it was biased against her. Id. at 31.

      We discern no legal error. When Father’s counsel presented Mother with

copies of the relevant text messages, Mother stated that she sent some of the

messages but not others. N.T., 5/1/2018, at 62. Father’s counsel then went

through several of the messages in an effort to discern which ones Mother

admitted sending and which ones she denied sending. For example, Mother

admitted threatening to kill Father if C.J.F. suffers any further abuse on his

watch and telling him he does not “deserve to be a dad,” but denied calling

him a “scumbag” and saying that he would never see Children again. Id. at

67-68.

      Accordingly, Father’s counsel did not ask Mother about text messages

she denied sending as Mother maintains. Mother denied sending only some

of the messages, and Father’s counsel questioned her to clarify which ones

she admitted sending and which ones she denied sending. This procedure


                                    - 18 -
J-S60043-18


was entirely proper. In addition, Father testified that the messages were not

altered, deleted, or changed in any way, and were an accurate representation

of his conversations with Mother. Id. at 130-31. The court was free to accept

Father’s testimony and its credibility determination in no way suggests bias

against Mother.

      Based on the foregoing, we conclude that the trial court did not commit

an abuse of discretion or error of law by awarding primary physical custody of

Children to Father. Therefore, we affirm the court’s May 16, 2018 order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




                                    - 19 -
